PATTERN JURY INSTRUCTIONS
1ST CIRCUIT COURT OF APPEALS
PART 4
ADVERSE EMPLOYMENT ACTION CLAIMS INSTRUCTIONS

4 PJI 1 | PUBLIC EMPLOYEE - FIRST AMENDMENT CLAIM - DISCHARGE OR FAILURE TO PROMOTE - FREE SPEECH ON MATTER OF PUBLIC CONCERN

In this case, [Plaintiff] claims that [Defendant], while acting “under color” of state law, intentionally deprived [Plaintiff] of [his/her] constitutional right to free speech by [discharging [him/her] from employment/ denying [him/her] a promotion] because [he/she] [[describe protected speech or conduct]] / [[Defendant] mistakenly believed that [Plaintiff] [describe protected speech or conduct]].

[Defendant] denies [Plaintiff]’s claims and asserts that [describe the defendant’s defense].

Under the First Amendment to the Constitution of the United States, a public employee has a right to freedom of speech on matters of public concern. It is unlawful for a public employer to take action against a public employee because the employee exercises [his/her] First Amendment rights by speaking on a matter of public concern or because the employer mistakenly believes that the employee did so.

To succeed on [his/her] claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Defendant]’s actions were “under color” of state law;

Second: [[Plaintiff] [describe protected speech or conduct]]/[[Defendant] mistakenly believed that [Plaintiff] [describe protected speech or conduct]];

Third: [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion];

Fourth: [[Plaintiff]’s [describe protected speech or conduct]]/[[Defendant]’s [describe mistaken belief]] was a motivating factor in [Defendant]’s decision [to discharge [Plaintiff]/not to promote [Plaintiff]]; and

Fifth: [Plaintiff] suffered damages because of [Defendant]’s actions.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

[To be used when the parties stipulate that the defendants acted “under color” of state law: The parties have agreed that [Defendant] acted “under color” of state law so you should accept that as a true and proven fact.]

[To be used when the parties dispute whether the defendants acted “under color” of state law: For the first element, you must decide whether [Defendant] acted “under color” of state law. A government official acts “under color” of law when [he/she] acts within the limits of lawful authority. A government official also acts under color of law when [he/she] claims to be performing an official duty but [his/her] acts are outside the limits of lawful authority and abusive in manner, or [he/she] acts in a way that misuses [his/her] power and is able to do so only because [he/she] is an official.]

For the second element, if you find that [Plaintiff] [describe protected speech or conduct], then you have found that [he/she] engaged in “protected speech.”

[To be used when it is alleged that the public employer mistakenly believed that employee engaged in protected activity: For the second element, if you find that [Defendant] mistakenly believed that [Employee] engaged in [describe protected speech or activity], then you have found the second element to be met, whether or not [Plaintiff] actually engaged in such [speech/conduct].]

For the third element, you must decide whether [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion].

For the fourth element, you must decide whether [Plaintiff]’s protected speech / [Defendant]’s mistaken belief was a “motivating factor” in [Defendant]’s decision. To prove that [[Plaintiff]’s protected speech] / [[Defendant]’s mistaken belief] was a motivating factor in [Defendant]’s decision, [Plaintiff] does not have to prove that [[his/her] protected speech] / [[Defendant]’s mistaken belief] was the only reason for [Defendant]’s actions. It is enough if [[Plaintiff] proves that [his/her] protected speech] / [[Defendant]’s mistaken belief] influenced [Defendant]’s decision. If [[Plaintiff]’s protected speech] / [[Defendant]’s mistaken belief] 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 speech]/[[Defendant]’s mistaken belief] was not a motivating factor in [Defendant]’s decision and that [he/she/it] [discharged/did not promote] [Plaintiff] for [another reason/other reasons]. A public employer may not take action against a public employee because the employee exercised protected First Amendment rights or because the public employer believed that the employee did so. But a public employer may [discharge/decline to promote] a public employee for any other reason, good or bad, fair or unfair. If you believe [Defendant]’s reason[s] for [his/her/its] decision [to discharge/not to promote] [Plaintiff], and you find that [his/her/its] decision was not motivated by [[Plaintiff]’s protected speech] / [[Defendant]’s mistaken belief], you must not second guess [his/her/its] 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 speech]/[[Defendant]’s mistaken belief that [Plaintiff] engaged in protected speech] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff]. I have explained to you that evidence can be direct or circumstantial. To decide whether [[Plaintiff]’s protected speech] / [[Defendant]’s mistaken belief] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff], you may consider the circumstances of [Defendant]’s decision. For example, you may consider whether you believe the reason[s] [Defendant] gave for the decision. If you do not believe the reason[s] [he/she/it] gave for the decision, you may consider whether the reason[s] [was/were] so unbelievable that [it was/they were] a coverup to hide the true unconstitutional reasons for the decision.]

If you find that [[Plaintiff] [describe protected speech or conduct]]/[[Defendant] mistakenly believed that [named of plaintiff] [describe protected speech or conduct]] and that this [protected speech] / belief was a “motivating” factor in [Defendant]’s decision to [discharge [Plaintiff] from employment/deny [Plaintiff] a promotion], you must decide whether [Plaintiff] suffered damages as a result. If the damages would not have existed except for the [discharge/denied promotion], then you may find that [Plaintiff] suffered those damages because of the [discharge/denied promotion].

[Including Affirmative Defense (if applicable, see annotations): If you find in [Plaintiff]’s favor for each fact [he/she] must prove, you must decide whether [Defendant] has shown by a preponderance of the evidence that [he/she/it] would have made the same decision even if [he/she/it] had not taken [[Plaintiff]’s protected activity] / [[his/her/its] mistaken belief that [named of plaintiff] [describe protected speech or conduct]] into account. If you find that [Plaintiff] would [have been dismissed/not have been promoted] for reasons other than [[his/her] protected speech] / [[Defendant]’s mistaken belief that [named of plaintiff] [describe protected speech or conduct]], your verdict should be for [Defendant].

If you find for [Plaintiff] and against [Defendant] on this defense, you must consider [Plaintiff]’s compensatory damages.]

[Without Affirmative Defense: If you find in [Plaintiff]’s favor for each fact [he/she] must prove, you must consider [Plaintiff]’s 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 [discharge/denied promotion], 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. You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:

(a) Net lost wages and benefits from the date of the [discharge] [denied promotion] to the date of your verdict; and

(b) Emotional pain and mental anguish.

To determine the amount of [Plaintiff]’s net lost wages and benefits, you should consider evidence of the actual wages [he/she] lost and the monetary value of any benefits [he/she] lost.

To determine whether and how much [Plaintiff] should recover for emotional pain and mental anguish, you may consider both the mental and physical aspects of injury – tangible and intangible. [Plaintiff] does not have to introduce evidence of a monetary value for intangible things like mental anguish. You will determine what amount fairly compensates [him/her] for [his/her] claim. There is no exact standard to apply, but the award should be fair in light of the evidence.

[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: (1) work comparable to the position [Plaintiff] held with [Defendant] was available, and (2) [Plaintiff] did not make reasonably diligent efforts to obtain it. If, however, [Defendant] shows that [Plaintiff] did not make reasonable efforts to obtain any work, then [Defendant] does not have to prove that comparable work was available.

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.]

[Punitive Damages: To be used only for individual-capacity claims against individual defendants: [Plaintiff] also claims that [name of individual defendant]’s acts were done with malice or reckless indifference to [Plaintiff]’s federally protected rights, which would entitle [him/her] to punitive damages in addition to compensatory damages. [Plaintiff] must prove by a preponderance of the evidence that [he/she] is entitled to punitive damages. You will only reach the issue of punitive damages if you find that [Plaintiff] has proved the elements of [his/her] claim against [name of individual defendant], and you award [Plaintiff] compensatory damages. You may not assess punitive damages against [public employer].

If you find for [Plaintiff] and find that [Defendant] acted with malice or reckless indifference to [Plaintiff]’s federally protected rights, the law allows you, in your discretion, to award [Plaintiff] punitive damages as a punishment for [Defendant] and as a deterrent to others.

A person acts with malice if the person’s conduct is motivated by evil intent or motive. A person acts with reckless indifference to the protected federal rights of another person when the person engages in conduct with a callous disregard for whether the conduct violates those protected federal rights.

If you find that punitive damages should be assessed, you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages. [You also may assess punitive damages against one or more of the individual defendants, and not others, or against more than one individual defendant in different amounts.]]

ANNOTATIONS AND COMMENTS

I. Causes of Action

This pattern charge contemplates cases in which a public employee sues members of a governing body who have the legal authority to take the adverse employment action about which the employee complains (e.g., school boards, city councils, county commissions). If the action is brought against a municipality or other government entity that is capable of being sued, then the pattern charge should be modified to reflect that the employee who took the adverse employment action on behalf of the government entity did so under color of state law and was authorized to do so either as the final decisionmaker or pursuant to the governing body’s policy and/or practice. Pattern Instruction 4.1 provides instructions for discharge and failure to promote claims, but it is also intended to be used for any other case in which the plaintiff alleges a discriminatory adverse employment action, including demotion, pay cut, transfer to a less desirable job, or other adverse employment action.

II. Elements and Defenses

A. “Under Color of State Law”

To prevail on a First Amendment claim, the plaintiff must prove that the defendant or the defendant’s representative acted under color of state law. This issue is usually undisputed and need not be charged. For cases in which the “under color of” issue is disputed, Pattern Instruction 4.1 contains an optional “under color” of element and instruction.

B. Whether Employee’s Speech is Protected

A threshold issue in most public employee freedom of speech cases is whether the employee engaged in protected speech. Under Garcetti v. Ceballos, 547 U.S. 410 (2006), an employee’s speech is not protected unless the plaintiff spoke as a citizen and not as part of his official duties. Garcetti, 547 U.S. at 421. To date, the Eleventh Circuit cases on this issue have decided the “citizen-employee” issue as a matter of law, and the cases generally say that the issue is a question of law, not a question of fact. See, e.g., Battle v. Bd. of Regents, 468 F.3d 755, 757, 761-62 (11th Cir. 2006) (per curiam) (affirming grant of summary judgment where there was no genuine dispute that speech was part of employee’s official duties); accord Abdur-Rahman v. Walker, 567 F.3d 1278, 1283-84 (11th Cir. 2009) (affirming judgment on the pleadings where there was no genuine fact dispute that employees made statements pursuant to official duties); Boyce v. Andrew, 510 F.3d 1333, 1343-47 (11th Cir. 2007) (per curiam) (reversing denial of qualified immunity based on “official duties” issue). Nonetheless, there could be a genuine fact dispute on the question. See D’Angelo v. Sch. Bd. of Polk Cnty., 497 F.3d 1203, 1211 (11th Cir. 2007) (affirming judgment as a matter of law based on “official duties” issue where there was no genuine fact dispute, but noting that such a case may arise). In cases where there is a dispute as to whether the plaintiff was speaking on a matter of public concern and not as part of his official employment duties, the instruction and verdict form should be adapted to cover this issue.

An employee may challenge an employer’s action as unlawful even if the employer makes a factual mistake about the employee’s behavior or activities. Heffernan v. City of Paterson, N.J., 136 S. Ct. 1412 (2016).

C. Adverse Employment Action

To prevail on a First Amendment retaliation claim, the plaintiff must prove that the employer subjected the plaintiff to an “adverse employment action.” Pattern Instruction 4.1 does not define “adverse employment action.” In most cases, the question whether an employer’s decision amounts to an “adverse employment action” will not be disputed because the decision is clearly an adverse employment action, such as termination, failure to promote, or demotion with pay cut. If there is a fact dispute as to whether an employment action amounts to an “adverse employment action,” the instruction and verdict form should be adapted accordingly. Pattern Instruction 4.21, infra, contains an adverse employment action charge that may be used. An “adverse employment action” “must involve an important condition of employment” and exists “when the alleged employment action would likely chill the exercise of constitutionally protected speech.” Akins v. Fulton Cnty., Ga., 420 F.3d 1293, 1300-01 (11th Cir 2005) (internal quotation marks omitted) (listing examples of “adverse employment actions,” including constructive discharge, transfer to a less desirable position, and actions that negatively impact “an employee’s salary, title, position, or job duties”).

D. Causation

Pattern Instruction 4.1 charges that the protected speech must be a “motivating factor” in the employer’s decision. This instruction is based on Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), in which the Supreme Court held that a plaintiff must show that protected First Amendment “conduct was a ‘substantial factor’ or to put it in other words, that it was a ‘motivating factor’” in the defendant’s challenged action. Id. at 287; see also Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007) (requiring that protected speech play “a substantial or motivating role in the adverse employment action”). To eliminate potential confusion that the terms “substantial” and “motivating” have different meanings, Pattern Instruction 4.1 charges that the protected speech must be a “motivating factor” in the defendant’s decision.

The model instruction includes in brackets an optional charge discussing the inference of pretext. The basis for this charge is explained in further detail in the annotations following Pattern Instruction 4.5, infra.

III. Individual Liability

An “official decisionmaker” is individually liable under §1983 for taking an adverse employment action in violation of the plaintiff’s First Amendment rights. See Quinn v. Monroe Cnty., 330 F.3d 1320, 1326 (11th Cir. 2003) (“The ‘decisionmaker’ inquiry addresses who has the power to make official decisions and, thus, be held individually liable.” (emphasis omitted)). The model instruction presumes that the defendant’s status as an official decisionmaker is undisputed or has been resolved by the court.

In a case where a genuine fact dispute exists as to the defendant’s status as an official decisionmaker, the instruction and verdict form should be adapted accordingly. The following principles of law may be helpful in fashioning a jury charge. The official decisionmaker may be identified by a rule, handbook, or organizational chart, or “by examining the statutory authority of the official alleged to have made the decision.” Id. at 1328. In the termination context, a defendant is an official decisionmaker if he or she has the power to effectuate termination, even if the termination decision is subject to further review. Id. On the other hand, a supervisor who merely has the power to recommend a termination is not an official decisionmaker, even if the recommendation is “rubber stamp[ed]” by the actual decisionmaker. Id. at 1327; accord Kamensky v. Dean, 148 F. App’x 878, 879-80 (11th Cir. 2005) (per curiam) (declining to extend a “rubber stamp” exception to the decisionmaker inquiry for individual liability). Although other circuits have taken a different approach to this issue, e.g., Tejada-Batista v. Morales, 424 F.3d 97, 102 (1st Cir. 2005) (holding that where a supervisor’s biased adverse recommendation to the official decisionmaker was a but-for cause of the official decisionmaker’s decision to take adverse employment action, the biased subordinate may be individually liable even if the official decisionmaker’s own motive was pure), at the date of this publication, the Eleventh Circuit has not reconsidered its holding in Quinn.

IV. Governmental Liability

V. Special Questions

The First Amendment protects independent contractors from being terminated from at-will government contracts in retaliation for the exercise of protected free speech. Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 684-85 (1996). Accordingly, the model instruction applies in such cases. The Eleventh Circuit has yet to decide whether to extend this protection to First Amendment claims brought by independent contractors without pre-existing relationships (i.e., “disappointed bidders”). See Webster v. Fulton Cnty., Ga., 283 F.3d 1254, 1257 (11th Cir. 2002).

VI. Remedies

Damages under §1983 are determined by common law compensation principles. Wright v. Sheppard, 919 F.2d 665, 669 (11th Cir. 1990). “In addition to damages based on monetary loss or physical pain and suffering... a §1983 plaintiff also may be awarded compensatory damages based on demonstrated mental and emotional distress, impairment of reputation, and personal humiliation.” Slicker v. Jackson, 215 F.3d 1225, 1231 (11th Cir. 2000).

The court, in its discretion, may award front pay as an alternative to reinstatement, E.g., Haskins v. City of Boaz, 822 F.2d 1014, 1015 (11th Cir. 1987). Front pay is a question for the court and not the jury, so it is not included as a remedy in Pattern Instruction 4.1.

A plaintiff cannot recover punitive damages in a §1983 action against a government entity. See Young Apartments, Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1047 (11th Cir. 2008) (“In a §1983 action, punitive damages are only available from government officials when they are sued in their individual capacities.” (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267 (1981))). Therefore, if the case involves claims against a government entity only, then the punitive damages instruction should not be given; if the case involves claims against a government entity and government officials sued in their individual capacities, then the instruction and verdict form should be adapted to clarify that the jury may only consider the issue of punitive damages with regard to the individual defendants.

Few awards exceeding a single digit ratio between punitive and compensatory damages will “comport with due process.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).

A plaintiff is not automatically entitled to a nominal damages instruction for constitutional violations. See Oliver v. Falla, 258 F.3d 1277, 1282 (11th Cir. 2001) (finding that because the plaintiff failed to request a nominal damages instruction, he waived “any entitlement to such damages”). A plaintiff is entitled to nominal damages, however, if a nominal damages instruction is requested and a violation of a fundamental constitutional right is established. See Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003) (citing Carey v. Piphus, 435 U.S. 247, 255 (1978)); see also Kelly v. Curtis, 21 F.3d 1544, 1557 (11th Cir. 1994) (“When constitutional rights are violated, a plaintiff may recover nominal damages even though he suffers no compensable injury.” (emphasis omitted)).

4 PJI 2 | PUBLIC EMPLOYEE - FIRST AMENDMENT CLAIM - DISCHARGE OR FAILURE TO PROMOTE - POLITICAL DISLOYALTY OR KEY EMPLOYEE

In this case, [Plaintiff] claims that [Defendant], while acting “under color” of state law, intentionally deprived [Plaintiff] of [his/her] constitutional right to free speech by [discharging [him/her] from employment/denying [him/her] a promotion] because [[he/she] [describe protected speech or conduct]] / [[Defendant] mistakenly believed that [named of plaintiff] [describe protected speech or conduct]].

[Defendant] denies [Plaintiff]’s claims and asserts that [describe the defendants’ defense].

Under the First Amendment to the Constitution of the United States, every citizen has a right to “freedom of speech,” which includes the right to engage in “political activity” without governmental interference or penalty. It is unlawful for a public employer to take action against a public employee [– except for certain “key” employees, as I will explain in a moment –] because the employee engaged in political activity, such as holding meetings and hearing the views of political candidates, running for office, or supporting political candidates, or because the employer mistakenly believed that the employee did so.

To succeed on [his/her] claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Defendant]’s actions were “under color” of state law;

Second: [[Plaintiff] engaged in constitutionally protected political activity, a form of free speech, by [describe protected activity]] / [[Defendant] mistakenly believed that [Plaintiff] [describe protected speech or conduct]];

Third: [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion];

Fourth: [[Plaintiff]’s [describe protected activity]]/[[Defendant]’s [describe mistaken belief]] was a motivating factor in [Defendant]’s decision [to discharge [Plaintiff]/not to promote [Plaintiff]]; and

Fifth: [Plaintiff] suffered damages because of [Defendant]’s acts.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

[To be used when the parties stipulate that defendants acted “under color” of state law: The parties have agreed that [Defendant] acted “under color” of state law so you should accept that as a proven fact.]

[To be used when the parties dispute whether the defendants acted “under color” of state law: For the first element, you must decide whether [Defendant] acted “under color” of state law. A government official acts “under color” of law when [he/she] acts within the limits of lawful authority. A government official also acts under color of law when [he/she] claims to be performing an official duty but [his/her] acts are outside the limits of lawful authority and abusive in manner, or [he/she] acts in a way that misuses [his/her] power and is able to do so only because [he/she] is an official.]

For the second element, if you find that [Plaintiff] [describe protected activity], then you have found that [he/she] engaged in “protected activity.”

[To be used when it is alleged that the public employer mistakenly believed that employee engaged in protected activity: For the second element, if you find that [Defendant] mistakenly believed that [Employee] engaged in [describe protected speech or activity], then you have found the second element to be met, whether or not [Plaintiff] actually engaged in such [speech/conduct].]

For the third element, you must decide whether [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion].

For the fourth element, you must decide whether [[Plaintiff]’s protected activity] / [[Defendant]’s mistaken belief that [Plaintiff] [describe protected speech or conduct]] was a “motivating factor” in [Defendant]’s decision. To prove that [[Plaintiff]’s protected activity]/[[Defendant]’s mistaken belief] was a motivating factor in [Defendant]’s decision, [Plaintiff] does not have to prove that [[his/her] protected activity] / [[Defendant]’s mistaken belief] was the only reason for [Defendant]’s actions. It is enough if [Plaintiff] proves that [[his/her] protected activity] / [[Defendant]’s mistaken belief] influenced [Defendant]’s decision. If [[Plaintiff]’s protected activity]/[[Defendant]’s mistaken belief] 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]/[[Defendant]’s mistaken belief] was not a motivating factor in [his/her/its] decision and that [he/she/it] [discharged/did not promote] [Plaintiff] for [another reason/other reasons]. A public employer may not take action against a public employee because the employee exercised [his/her] protected First Amendment rights or because the employer believed that the employee exercised [his/her] protected First Amendment rights. But a public employer may [discharge/decline to promote] a public employee for any other reason, good or bad, fair or unfair. If you believe [Defendant]’s reason[s] for [his/her/its] decision [to discharge/not to promote] [Plaintiff], and you find that [his/her/its] decision was not motivated by [Plaintiff]’s protected activity or a mistaken belief that the employee engaged in protected activity, you must not second guess [his/her/its] 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]/[the employer’s mistaken belief that the employee engaged in protected activity] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff]. I have explained to you that evidence can be direct or circumstantial. To decide whether [[Plaintiff]’s protected activity]/[the employer’s mistaken belief that the employee engaged in protected activity] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff], you may consider the circumstances of [Defendant]’s decision. For example, you may consider whether you believe the reason[s] [Defendant] gave for the decision. If you do not believe the reason[s] [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 unconstitutional reasons for the decision.]

If you find that [[Plaintiff] [describe protected activity]]/[[Defendant] mistakenly believed that [Plaintiff] [describe protected speech or conduct]] and that this [protected activity / belief] was a motivating factor in [Defendant]’s decision to [discharge [Plaintiff] from employment/deny [Plaintiff] a promotion], you must decide whether [Plaintiff] suffered damages as a result. If the damages would not have existed except for the [discharge/denied promotion], then you may find that [Plaintiff] suffered those damages because of the [discharge/denied promotion].

[Including “Same Decision” Defense (if applicable, see annotations): If you find in [Plaintiff]’s favor for each fact [he/she] must prove, you must decide whether [Defendant] has shown by a preponderance of the evidence that [he/she/it] would have made the same decision even if [he/she/it] had not taken [[Plaintiff]’s protected activity] / [[Defendant]’s mistaken belief that [Plaintiff] engaged in protected activity] into account. If you find that [Plaintiff] would [have been dismissed/not have been promoted] for reasons other than [[his/her] protected activity] / [[Defendant]’s mistaken belief], your verdict should be for [Defendant].]

If you find for [Plaintiff] and against [Defendant] on this defense, you must [consider [Plaintiff]’s compensatory damages/decide the issue of [Defendant]’s “key-employee” defense.]]

[Including “Key Employee” Defense: If you find by a preponderance of the evidence that [Plaintiff] suffered damages as a result of [Defendant]’s acts [and that [Plaintiff] would not have been [discharged] [denied a promotion] for reasons unrelated to [[his/her] protected activity]]/[[Defendant]’s mistaken belief that [Plaintiff] engaged in protected activity], then you must decide whether [Defendant] has proved by a preponderance of the evidence that [Plaintiff] was a “key” employee whose job duties and responsibilities were such that [Defendant] had a right to expect and demand political loyalty from [Plaintiff] as a condition of employment.

An elected official such as [Defendant] must stand for election and is politically responsible or accountable for the acts of certain key employees. Therefore, elected officials have a right to expect and demand political loyalty from key employees. If a key employee engages or is believed to have engaged in politically disloyal activity, that employee may be [terminated] [denied a promotion] even though the politically disloyal activity would otherwise be a form of free speech or free association protected by the First Amendment. On the other hand, non-key employees continue to enjoy full First Amendment protection and cannot be [terminated] [denied a promotion] simply because they engaged in politically disloyal activity or are believed to have done so.

[Defendant] claims that [Plaintiff] was a “key” employee. [Defendant] has the burden to prove by a preponderance of the evidence that [Plaintiff] was a “key employee.” A key employee is one who holds a position that implicates political concerns in its effective functioning, so politically disloyal activity may interfere with the key employee’s performance of public duties. To decide whether [Plaintiff] was a key employee by virtue of [Plaintiff]’s position as [describe plaintiff’s job], you should consider factors such as:

(a) Whether [Plaintiff] acted as an advisor or formulated plans or policies for the implementation of broad goals concerning the operation of the [describe the office or department in which [Plaintiff] worked];

(b) Whether the [Plaintiff] exercised independent judgment in carrying out [his] [her] responsibilities;

(c) Whether [Plaintiff] had regular contact with or worked closely with [Defendant];

(d) Whether [Plaintiff] frequently interacted with the public as [Defendant]’s representative or alter ego; and

(e) Whether [Plaintiff] had access to confidential information not generally available to [Defendant]’s other employees.

No one of these factors is more important than any of the others, and a job can be a “key” position even if one or some of these factors do not apply. You must weigh these factors and then decide whether the [Plaintiff] was, or was not, a “key” employee.]

If you find that [Plaintiff] was a key employee, then you will indicate that on the verdict form, and your foreperson should sign and date the verdict form. If you find that [Plaintiff] was not a key employee, you must then decide the issue of [Plaintiff]’s compensatory damages.]

[Without Affirmative Defense: If you find by a preponderance of the evidence that [Plaintiff] suffered damages because of [Defendant]’s acts, you must then decide the issue of [Plaintiff]’s 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 [discharge/denied promotion], 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.

You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:

(a) Net lost wages and benefits from the date of the [discharge] [denied promotion] to the date of your verdict; and

(b) Emotional pain and mental anguish.

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

If, however, [Defendant] shows that [Plaintiff] did not make reasonable efforts to obtain any work, then [Defendant] does not have to prove that comparable work was available.

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.]

[Punitive Damages: To be used only for individual-capacity claims against individual defendants: [Plaintiff] also claims that [name of individual defendant]’s acts were done with malice or reckless indifference to [Plaintiff]’s federally protected rights, which would entitle [him/her] to punitive damages in addition to compensatory damages. [Plaintiff] must prove by a preponderance of the evidence that [he/she] is entitled to punitive damages. You will only reach the issue of punitive damages if you find that [Plaintiff] has proved the elements of [his/her] claim against [name of individual defendant] and you award [Plaintiff] compensatory damages. You may not assess punitive damages against [public employer].

If you find for [Plaintiff] and find that [Defendant] acted with malice or reckless indifference to [Plaintiff]’s federally protected rights, the law allows you, in your discretion, to award [Plaintiff] punitive damages as a punishment for [Defendant] and as a deterrent to others.

A person acts with malice if the person’s conduct is motivated by evil intent or motive. A person acts with reckless indifference to the protected federal rights of another person when the person engages in conduct with a callous disregard for whether the conduct violates those protected federal rights.

If you find that punitive damages should be assessed, you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages. [You also may assess punitive damages against one or more of the individual defendants, and not others, or against more than one individual defendant in different amounts.]]

ANNOTATIONS AND COMMENTS

I. Causes of Action

Generally, an employer may not take an adverse employment action against an employee who exercises rights under the First Amendment, including the right to engage in political activity. Pattern Instruction 4.2 provides instructions for discharge and failure to promote claims, but it is also intended to be used for any other case in which the plaintiff alleges a discriminatory adverse employment action, including demotion, pay cut, transfer to a less desirable job, or other adverse employment action.

II. Elements and Defenses

A. Adverse Employment Action

To prevail on a First Amendment retaliation claim, the plaintiff must prove that the employer subjected the plaintiff to an “adverse employment action.” Pattern Instruction 4.2 does not define “adverse employment action.” In most cases, the question whether an employer’s decision amounts to an “adverse employment action” will not be disputed because the decision is clearly an adverse employment action, such as termination, failure to promote, or demotion with pay cut. If there is a fact dispute as to whether an employment action amounts to an “adverse employment action,” the instruction and verdict form should be adapted accordingly. Pattern Instruction 4.21, infra, contains an adverse employment action charge that may be used. An “adverse employment action” “must involve an important condition of employment” and exists “when the alleged employment action would likely chill the exercise of constitutionally protected speech.” Akins v. Fulton Cnty., Ga., 420 F.3d 1293, 1301-02 (11th Cir. 2005) (internal quotation marks omitted) (listing examples of adverse employment actions, including constructive discharge, transfer to a less desirable position, and actions that negatively impact an employee’s salary, title, position, or job duties). An employee may challenge an employer’s action as unlawful even if the employer makes a factual mistake about the employee’s behavior or activities. Heffernan v. City of Paterson, N.J., 136 S. Ct. 1412 (2016).

B. Causation

Pattern Instruction 4.2 charges that the protected political activity must be a “motivating factor” in the employer’s decision. This instruction is based on Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), in which the Supreme Court held that a plaintiff must show that protected First Amendment “conduct was a ‘substantial factor’ or to put it in other words, that it was a ‘motivating factor’” in the defendant’s challenged action. Id. at 287; see also Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007) (requiring that protected speech play “a substantial or motivating role in the adverse employment action”). To eliminate potential confusion that the terms “substantial” and “motivating” have different meanings, Pattern Instruction 4.2 charges that the protected speech must be a “motivating factor” in the defendant’s decision. The model instruction includes in brackets an optional charge discussing the inference of pretext. The basis for this charge is explained in further detail in the annotations following Pattern Instruction 4.5, infra.

C. “Key Employee” Defense

Pattern Instruction 4.2 contains an instruction regarding the “key employee” defense. This instruction is based on Branti v. Finkel, 445 U.S. 507 (1980), in which the Supreme Court held that governmental employers cannot condition employment upon an employee’s political affiliation, which is protected by the First Amendment, unless the “hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. at 518; see also Rutan v. Republican Party of Ill., 497 U.S. 62, 73-74 (1990) (holding that employment decisions such as promotions, transfers, and recalls after layoffs, cannot be based upon political affiliation or other protected political activity unless the patronage practice is narrowly tailored to advance vital governmental interests); Cutcliffe v. Cochran, 117 F.3d 1353, 1357 (11th Cir. 1997) (explaining that the question whether a particular deputy sheriff is a “key employee” may depend on the deputy’s individual job functions).

D. Candidacy Defense

A defense related to the “key employee” defense is the “candidacy defense,” which the Eleventh Circuit recognized in Underwood v. Harkins, 698 F.3d 1335 (11th Cir. 2012). The “candidacy defense” applies in cases where an elected official dismisses an employee because that employee opposed the elected official in an election. The Eleventh Circuit held that “an elected official may dismiss an immediate subordinate for opposing her in an election without violating the First Amendment if the subordinate, under state or local law, has the same duties and powers as the elected official.” Id. at 1343. Pattern Instruction 4.2 does not contain a “candidacy defense” instruction but should be modified to include this defense when relevant.

III. Remedies

For annotations and comments regarding remedies, including remedies available against a government entity, please see the Annotations and Comments following Pattern Instruction 4.1, supra.1

4 PJI 3 | PUBLIC EMPLOYEE - EQUAL PROTECTION CLAIM - RACE/SEX DISCRIMINATION - HOSTILE WORK ENVIRONMENT - SUPERVISOR HARASSMENT (SEPARATE LIABILITY FOR PUBLIC BODY AND INDIVIDUAL SUPERVISORS)

In this case, [Plaintiff] claims that [Defendant], while acting “under color” of state law, intentionally discriminated against [Plaintiff] because of [his/her] [race/sex] in violation of [Plaintiff]’s constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

[Defendant] denies [Plaintiff]’s claims and asserts that [describe the defendant’s defense].

The Fourteenth Amendment’s Equal Protection Clause prohibits discrimination against public employees on the basis of [race/sex]. It also prohibits creating a [racially/sexually] hostile work environment.

[The law that applies to [Plaintiff]’s claims against [Defendant] is different from the law that applies to [his/her] claim against [name of city], and you must consider each claim separately.]

First, I will explain the law you must apply to decide [Plaintiff]’s claims against [Defendant].

To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Plaintiff] was harassed because of [his/her] [race/sex];

Second: [Defendant] intentionally committed acts that created a hostile work environment for [Plaintiff], either personally or by directing others;

Third: [Defendant] had supervisory authority over [Plaintiff] in the terms and conditions of [his/her] employment;

Fourth: [Defendant]’s actions were “under color” of state law; and

Fifth: [Plaintiff] suffered damages because of the hostile work environment.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

For the first element, [Plaintiff] must show that [he/she] was harassed because of [his/her] [race/sex].

For the second element, [Plaintiff] must show that [Defendant] intentionally committed acts that created a [racially/sexually] hostile work environment either personally or by directing others.

A [racially/sexually] “hostile work environment” exists if:

(a) [Plaintiff] was subjected to [racially/sexually] offensive acts or statements – even if they were not specifically directed at [him/her];

(b) [Plaintiff] did not welcome the offensive acts or statements, which means that [Plaintiff] did not directly or indirectly invite or solicit them by [his/her] own acts or statements;

(c) the offensive acts or statements were so severe or pervasive that they materially altered the terms and conditions of [Plaintiff]’s employment;

(d) a reasonable person – not someone who is overly sensitive – would have found that the offensive acts or statements materially altered the terms and conditions of the person’s employment; and

(e) [Plaintiff] personally believed that the offensive acts or statements materially altered the terms and conditions of [his/her] employment.

To determine whether the conduct in this case was “so severe or pervasive” that it materially altered the terms and conditions of [Plaintiff]’s employment, you should consider all the circumstances, including:

(a) how often the discriminatory conduct occurred;

(b) its severity;

(c) whether it was physically or psychologically threatening or humiliating; and

(d) whether it unreasonably interfered with [Plaintiff]’s work performance.

First: [Plaintiff] was subjected to a hostile work environment because of [his/her] [race/gender];

Second: The hostile work environment was the result of a “policy or custom” of [name of city]; and

Third: [Plaintiff] suffered damages because of the hostile work environment.

[If there are no individual defendants, insert “hostile work environment” paragraphs here.]

A “policy or custom” includes a:

(a) rule or regulation enacted, adopted, or ratified by [name of city];

(b) policy statement or decision that [name of city]’s policymakers made; or

(c) practice or course of conduct that is so widespread that it has acquired the force of law – even if the practice has not been formally approved. You may find that a “policy or custom” existed if there was a practice that was so persistent, widespread, or repetitious that [name of city]’s policymaker[s] either knew of it, or should have known of it.

[Name of policymaker] is [name of city]’s “policymaker.”

If you find in [Plaintiff]’s favor on the elements [he/she] must prove, then you must you must decide whether [Plaintiff] suffered damages because of the hostile work environment. If the damages would not have existed except for the hostile work environment, then you may find that [Plaintiff] suffered those damages because of the hostile work environment.

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 hostile work environment, 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.

You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:

(a) net lost wages and benefits to the date of your verdict; and

(b) emotional pain and mental anguish.

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

If, however, [Defendant] shows that [Plaintiff] did not make reasonable efforts to obtain any work, then [Defendant] does not have to prove that comparable work was available.

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.]

[Punitive Damages: To be used only for individual-capacity claims against individual defendants: [Plaintiff] also claims that [Defendant]’s acts were done with malice or reckless indifference to [Plaintiff]’s federally protected rights, which would entitle [him/her] to punitive damages in addition to compensatory damages. [Plaintiff] must prove by a preponderance of the evidence that [he/she] is entitled to punitive damages. You will only reach the issue of punitive damages if you find that [Plaintiff] has proved the elements of [his/her] claim against [Defendant] and you award [Plaintiff] compensatory damages. You may not assess punitive damages against [name of city].

If you find for [Plaintiff] and find that [Defendant] acted with malice or reckless indifference to [Plaintiff]’s federally protected rights, the law allows you, in your discretion, to award [Plaintiff] punitive damages as a punishment for [Defendant] and as a deterrent to others.

A person acts with malice if the person’s conduct is motivated by evil intent or motive. A person acts with reckless indifference to the protected federal rights of another person when the person engages in conduct with a callous disregard for whether the conduct violates those protected federal rights.

If you find that punitive damages should be assessed, you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages. [You also may assess punitive damages against one or more of the individual defendants, and not others, or against more than one individual defendant in different amounts.]]

ANNOTATIONS AND COMMENTS

I. Cause of Action

Under the Equal Protection Clause of the Fourteenth Amendment, public employees have a constitutional right to be free from sex discrimination and race discrimination in public employment. This right to be free from sex and race discrimination includes the right to be free from a hostile work environment based on race or sex. See, e.g., Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009) (discussing equal protection racial harassment claims); Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995) (discussing equal protection sexual harassment claims).

This pattern instruction focuses on Equal Protection claims based on a hostile work environment. For other types of Equal Protection claims, such as discriminatory discharge based on race or gender, this instruction may be adapted to include the elements and explanations from Pattern Instruction 4.5, infra.

II. Elements

The definition of a hostile work environment is adapted from Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-23 (1993). Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808-09 (11th Cir. 2010) (en banc); Mendoza v. Borden, Inc., 195 F.3d 1238, 1245-46 (11th Cir. 1999) (en banc). The language defining “hostile work environment” is the same as the language in Pattern Instruction 4.6, infra (Title VII Hostile Work Environment) because the elements of an Equal Protection hostile work environment claim are the same as hostile work environment claims brought under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §1981. Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th Cir. 2009). To prevail on an Equal Protection claim, which is brought pursuant to 42 U.S.C. §1983, the plaintiff must also show that the defendant’s actions were under color of state law. Watkins v. Bowden, 105 F.3d 1344, 1355 (11th Cir. 1997) (per curiam).

III. Special Liability Questions

Supervisor Liability.

Liability in §1983 cases “cannot be premised solely upon a theory of respondeat superior.” Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir. 2009). A supervisor may be held liable under §1983 only “when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation.” Id. “The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.” Id. at 1299-1300 (internal quotation marks omitted). Pattern Instruction 4.3 is to be used in cases where the plaintiff alleges that the supervisor personally participated in creating the hostile work environment. Pattern Instruction 4.4 is to be used in cases where the plaintiff alleges that there is a causal connection between the supervisor’s actions and the constitutional deprivation.

A “’supervisor’ is not merely a person who possesses authority to oversee plaintiff’s job performance but a person with the power directly to affect the terms and conditions of the plaintiff’s employment.” Bryant, 575 F.3d at 1300; see also Vance v. Ball State Univ., No. 11-556, 2013 WL 3155228 (U.S. June 24, 2013) (holding that “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim”).

Pattern Instruction 4.3 assumes that there is no genuine fact dispute whether the harasser is a supervisor with the authority to correct the hostile work environment. If there is a fact dispute on this issue, the instruction should be modified accordingly.

Governmental Liability.

A government entity cannot be held liable for the actions of its employees under 42 U.S.C. §1983 based on a theory of respondeat superior. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1307 (11th Cir. 2001) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 663 n.7 (1978)). “Rather, only deprivations undertaken pursuant to governmental ‘custom’ or ‘policy’ may lead to the imposition of governmental liability.” Id. To prove a “custom, a plaintiff must establish a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a ‘custom or usage with the force of law.’” Id. at 1308 (11th Cir. 2001) (internal quotation marks omitted); accord Monell, 436 U.S. at 690-91 (1978)).

Pattern Instruction 4.3 contains language that is intended to guide the jury through the “policy or custom issue.” The instruction does not define the term “policymaker.” If there is a dispute whether the decisionmaker was a final policymaker, then the instruction should be adapted accordingly. An official is considered a final policymaker if his decisions are insulated from review but not if his decisions are subject to meaningful administrative review. E.g., Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1264 (11th Cir. 2010) (citing Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir. 1996) and Martinez v. City of Opa-Locka, Fla., 971 F.2d 708, 714-15 (11th Cir. 1992) (per curiam)); see also Maschmeier v. Scott, 269 F. App’x. 941, 943-44 (11th Cir. 2008) (per curiam) (defining meaningful review and explaining how to demonstrate that the review was not meaningful).

IV. Remedies

A plaintiff cannot recover punitive damages in a §1983 action against a government entity. E.g., Young Apartments, Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1047 (11th Cir. 2008) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267 (1981)) (“In a §1983 action, punitive damages are only available from government officials when they are sued in their individual capacities.”). Therefore, if the case involves claims against a government entity only, then the punitive damages instruction should not be given; if the case involves claims against a government entity and government officials sued in their individual capacities, then the instruction and verdict form should be adapted to clarify that the jury may only consider the issue of punitive damages with regard to the individual defendants.

For additional annotations and comments regarding remedies, please see the Annotations and Comments following Pattern Instruction 4.1, supra.

V. When the Case Involves Hostile Work Environment Claims Under More than One Statute

In some cases, a plaintiff will bring a hostile work environment claim under more than one statute based on the same set of facts (Title VII, Equal Protection Clause, and 42 U.S.C. §1981). The jury instruction on these separate claims can be combined because the elements of an Equal Protection hostile work environment claim are the same as hostile work environment claims brought under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §1981. Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th Cir. 2009). Two issues to consider when combining instructions:

(1) statutes of limitations differ, so the instruction and verdict form should take that into account;

(2) the availability of punitive damages differs by statute and type of defendant, so the instruction and verdict form should take that into account.

4 PJI 4 | PUBLIC EMPLOYEE - EQUAL PROTECTION CLAIM - RACE/SEX DISCRIMINATION - HOSTILE WORK ENVIRONMENT - CO-WORKER HARASSMENT (SEPARATE LIABILITY FOR PUBLIC BODY AND INDIVIDUAL SUPERVISORS)

In this case, [Plaintiff] claims that [Defendant], while acting “under color” of state law, intentionally discriminated against [Plaintiff] because of [his/her] [race/sex] in violation of [Plaintiff]’s constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

[Defendant] denies [Plaintiff]’s claims and asserts that [describe the defendant’s defense].

The Fourteenth Amendment’s Equal Protection Clause prohibits discrimination against public employees on the basis of [race/sex]. It also prohibits creating a [racially/sexually] hostile work environment.

[The law that applies to [Plaintiff]’s claims against [Defendant] is different from the law that applies to [his/her] claim against [Defendant], and you must consider each claim separately.]

First, I will explain the law you must apply to decide [Plaintiff]’s claim against [Defendant].

To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Plaintiff] was harassed because of [his/her] [race/sex];

Second: The harassment created a hostile work environment for [Plaintiff];

Third: [Defendant] had supervisory authority over [Plaintiff] in the terms and conditions of [his/her] employment;

Fourth: [Defendant] knew about the hostile work environment;

Fifth: [Defendant] acted with deliberate indifference in not taking prompt remedial action to eliminate the hostile work environment;

Sixth: [Defendant]’s actions were “under color” of state law; and

Seventh: [Plaintiff] suffered damages because of the hostile work environment.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

A [racially/sexually] “hostile work environment” exists if:

A “material alteration” is a significant change in condition. Conduct that amounts only to ordinary socializing in the workplace does not create a hostile work environment. A hostile work environment will not result from occasional horseplay, [sexual flirtation,] offhand comments, simple teasing, sporadic use of offensive language, or occasional jokes related to [race/sex]. But discriminatory intimidation, ridicule, insults, or other verbal or physical conduct may be so extreme that it materially changes the employment terms and conditions.

For the first and second elements, you must decide whether [harasser], [Plaintiff]’s co-worker, created a hostile work environment because of [Plaintiff]’s [race/sex].

For the fourth and fifth elements, you may hold [Defendant] responsible for the hostile work environment only if [Plaintiff] proves by a preponderance of the evidence that [Defendant] knew about the hostile work environment but permitted it to continue by failing to take prompt action to eliminate it. If you find that the harassment was so widespread and obvious that [Defendant] should have been on notice of the need to act, then you may find that [Defendant] “knew” about the hostile work environment. And if you find that [Defendant] knew about the hostile work environment but failed to take prompt action to stop it, then you may find that [Defendant] acted with deliberate indifference in not taking prompt remedial action to eliminate the hostile work environment.

For the seventh element, you must decide whether [Plaintiff] suffered damages because of the hostile work environment. If the damages would not have existed except for the hostile work environment, then you may find that [Plaintiff] suffered those damages because of the hostile work environment.

[To be used when the parties stipulate that defendants acted “under color” of state law: The parties have agreed that [Defendant] acted “under color” of state law so you should accept that as a proven fact.]

[To be used when the parties dispute whether the defendants acted “under color” of state law: For the third and sixth elements, you must also decide whether [Defendant] had supervisory authority over [Plaintiff] and whether [he/she] acted “under color” of state law.

A government official acts “under color” of law when [he/she] acts within the limits of lawful authority. A government official also acts under color of law when [he/she] claims to be performing an official duty but [his/her] acts are outside the limits of lawful authority and abusive in manner, or [he/she] acts in a way that misuses [his/her] power and is able to do so only because [he/she] is an official.]

To find that [Defendant] acted “under color” of state law, you must also find that [Defendant] had supervisory authority over [Plaintiff] in the terms and conditions of [his/her] employment and that [Defendant] abused or misused that authority by allowing [Plaintiff] to be subjected to a hostile work environment because of [his/her] [race/sex].]

Now I will explain the law you must apply to decide [Plaintiff]’s claims against [Defendant].

To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Plaintiff] was subjected to a hostile work environment because of [his/her] [race/sex];

Second The hostile work environment was the result of a “policy or custom” of [Defendant]; and

Third: [Plaintiff] suffered damages because of the hostile work environment.

[If there are no individual defendants, insert “hostile work environment” paragraphs here.]

A “policy or custom” includes a:

(a) rule or regulation enacted, adopted, or ratified by [Defendant];

(b) policy statement or decision that [Defendant]’s policymakers made; or

(c) practice or course of conduct that is so widespread that it has acquired the force of law – even if the practice has not been formally approved. You may find that a “policy or custom” existed if there was a practice that was so persistent, widespread, or repetitious that [Defendant]’s policymaker[s] either knew about it, or should have known about it.

[Policymaker] is [Defendant]’s “policymaker.”

If you find that [Plaintiff] has proved each element of [his/her] claim against either [names of individual defendants], [Defendant], or both, 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 the hostile work environment, 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.

You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:

(a) lost wages and benefits from the date of [discharge/denied promotion] to the date of your verdict; and

(b) emotional pain and mental anguish.

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

ANNOTATIONS AND COMMENTS

I. Cause of Action

II. Elements

III. Special Liability Questions

Supervisor Liability. Liability in §1983 cases “cannot be premised solely upon a theory of respondeat superior.” Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir. 2009). A supervisor may be held liable under §1983 only “when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation.” Id. (internal quotation marks omitted). “The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.” Id. at 1299-1300.

Pattern Instruction 4.3 is to be used in cases where the plaintiff alleges that the supervisor personally participated in creating the hostile work environment. Pattern Instruction 4.4 is to be used in cases where the plaintiff alleges that there is a causal connection between the supervisor’s actions and the constitutional deprivation.

Pattern Instruction 4.4 asks whether the individual defendant is a supervisor with the authority to correct the hostile work environment. A “’supervisor’ is not merely a person who possesses authority to oversee plaintiff’s job performance but a person with the power directly to affect the terms and conditions of the plaintiff’s employment.” Bryant, 575 F.3d at 1300; see also Vance v. Ball State Univ., No. 11-556, 2013 WL 3155228 (U.S. June 24, 2013) (holding that “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim”).

Governmental Liability. A government entity cannot be held liable for the actions of its employees under 42 U.S.C. §1983 based on a theory of respondeat superior. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1307 (11th Cir. 2001) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 663 n.7 (1978)). “Rather, only deprivations undertaken pursuant to governmental ‘custom’ or ‘policy’ may lead to the imposition of governmental liability.” Id. To prove a “custom, a plaintiff must establish a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a ‘custom or usage with the force of law.’” Id. at 1308 (11th Cir. 2001) (some internal quotation marks omitted); accord Monell, 436 U.S. at 690-91.

This pattern instruction contains language that is intended to guide the jury through the “policy or custom issue”.” If there is a dispute as to whether the decisionmaker was a final policymaker, then the instruction should be adapted accordingly. Please refer to the annotations to Federal Claims Instruction 4.3, supra.

IV. Remedies

V. When the Case Involves Hostile Work Environment Claims Under More than One Statute

4 PJI 5 | TITLE VII - CIVIL RIGHTS ACT - DISCRIMINATION - DISCHARGE OR FAILURE TO PROMOTE - INCLUDING "SAME DECISION" DEFENSE

In this case, [Plaintiff] claims that [Defendant] violated the Federal Civil Rights statutes that prohibit employers from discriminating against employees in the terms and conditions of employment because of their [race/religion/sex/national origin].

Specifically, [Plaintiff] claims that [Defendant] [discharged/denied a promotion to] [him/her] because of [his/her] [race/sex/religion/national origin].

[Defendant] denies [Plaintiff]’s claims and asserts that [describe the defendant’s defense].

To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Defendant] [discharged/denied a promotion to] [Plaintiff]; and

Second: [Plaintiff]’s [race/religion/sex/national origin] was a motivating factor that prompted [Defendant] to [discharge [Plaintiff]/deny [Plaintiff] a promotion].

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

If you find that [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion], you must decide whether [Plaintiff]’s [race/religion/sex/national origin] was a “motivating factor” in the decision.

To prove that [race/religion/sex/national origin] was a motivating factor in [Defendant]’s decision, [Plaintiff] does not have to prove that [his/her] [race/religion/sex/national origin] was the only reason that [Defendant] [discharged [him/her] from employment/denied [him/her] a promotion]. It is enough if [Plaintiff] proves that [race/religion/sex/national origin] influenced the decision. If [Plaintiff]’s [race/religion/sex/national origin] made a difference in [Defendant]’s decision, you may find that it was a motivating factor in the decision.

[Defendant] claims that [Plaintiff]’s [race/religion/sex/national origin] was not a motivating factor in the decision and that [he/she] [discharged/did not promote] [Plaintiff] for [another reason/other reasons]. An employer may not discriminate against an employee because of the employee’s [race/religion/sex/national origin], but the employer may [discharge/decline to promote] an employee for any other reason, good or bad, fair or unfair. If you believe [Defendant]’s reason[s] for the decision [to discharge/not to promote] [Plaintiff], and you find that [Defendant]’s decision was not motivated by [Plaintiff]’s [race/religion/sex/national origin], you must not second guess [Defendant]’s decision, and you must not substitute your own judgment for [Defendant]’s judgment – even if you disagree with it.

[Pretext (optional, see annotations): As I have explained, [Plaintiff] has the burden to prove that [his/her] [race/religion/sex/national origin] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff]. I have explained to you that evidence can be direct or circumstantial. To decide whether [Plaintiff]’s [race/religion/sex/national origin] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff], you may consider the circumstances of [Defendant]’s decision. For example, you may consider whether you believe the reason[s] [Defendant] gave for the decision. If you do not believe the reason[s] [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 discriminatory reasons for the decision.]

[Cat’s Paw (if applicable, see annotations): [Plaintiff] claims that [Defendant]’s decision [to discharge/not to promote] [Plaintiff] was based on the recommendation of [Plaintiff]’s supervisor and that [Plaintiff]’s [race/religion/sex/national origin] was a motivating factor in the supervisor’s recommendation. If [Plaintiff]’s supervisor recommended that [Defendant] [discharge/decline to promote] [Plaintiff] and [Plaintiff]’s [race/religion/sex/national origin] motivated the supervisor’s recommendation, the supervisor’s recommendation can be a “motivating factor” behind [Defendant]’s employment decision – even if the supervisor did not make the ultimate decision to [discharge/decline to promote] [Plaintiff].

But [Plaintiff]’s [race/religion/sex/national origin] can be a motivating factor in [Defendant]’s decision only if you find that [Plaintiff] has proved each of the following by a preponderance of the evidence:

(a) the supervisor acted with the intent to make [Defendant] [discharge/deny a promotion to] [Plaintiff] (which means that the supervisor wanted [Defendant] to [discharge/deny a promotion to] [Plaintiff]), or the supervisor believed that [his/her] actions would cause [Defendant] [to discharge/deny a promotion to] [Plaintiff];

(b)[Plaintiff]’s [race/religion/sex/national origin] was a motivating factor behind the supervisor’s actions; and

(c) there was a direct relationship between the supervisor’s actions and [Plaintiff]’s [discharge/denial of promotion].]

[Including Affirmative Defense (if applicable, see annotations): If you find in [Plaintiff]’s favor for each fact [he/she] must prove, you must decide whether [Defendant] has shown by a preponderance of the evidence that [he/she/it] would have [discharged/not promoted] [Plaintiff] even if [Defendant] had not taken [Plaintiff]’s [race/religion/sex/national origin] into account. If you find that [Plaintiff] would [have been discharged/not have been promoted] for reasons other than [his/her] [race/religion/sex/national origin], you must make that finding in your verdict.

If you find for [Plaintiff] and against [Defendant] on this defense, you must consider [Plaintiff]’s compensatory damages.]

[Without Affirmative Defense: If you find in [Plaintiff]’s favor for each fact [he/she] must prove, you must consider [Plaintiff]’s 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 [discharge/denied promotion], 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.

You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:

(a) net lost wages and benefits from the date of [discharge/denied promotion] to the date of your verdict; and

(b) emotional pain and mental anguish.

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

If, however, [Defendant] shows that [Plaintiff] did not make reasonable efforts to obtain any work, then [Defendant] does not have to prove that comparable work was available.

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.]

[Punitive Damages: [Plaintiff] also asks you to award punitive damages. The purpose of punitive damages is not to compensate [Plaintiff] but, instead, to punish [Defendant] for wrongful conduct and to deter similar wrongful conduct. You will only reach the issue of punitive damages if you find for [Plaintiff] and award [him] [her] compensatory damages.

To be entitled to an award of punitive damages, [Plaintiff] must prove by a preponderance of the evidence that [Defendant] acted with either malice or with reckless indifference toward [Plaintiff]’s federally protected rights. Specifically, [Plaintiff] must show that an employee of [Defendant], acting in a managerial capacity, either acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights.

There is no bright-line rule about which employees act in a managerial capacity. You must determine whether an employee acted in a “managerial capacity” based upon the type of authority [Defendant] gave the employee and the amount of discretion that the employee has in what is done and how it is accomplished.

To show that [Defendant] acted with malice, [Plaintiff] must show that an employee acting in a managerial capacity knew that federal law prohibits discrimination and discriminated against [Plaintiff] anyway. To show that [Defendant] acted with reckless indifference to [Plaintiff]’s federally protected rights, [Plaintiff] must show that an employee acting in a managerial capacity acted with serious disregard for whether the conduct violated federal law. Either malice or reckless indifference is sufficient to entitle [Plaintiff] to an award of punitive damages; [Plaintiff] need not prove both.

An employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where the managerial employees’ acts are contrary to the employer’s good faith efforts to comply with the law by implementing policies and programs designed to prevent unlawful discrimination in the workplace. However, the mere existence of policies prohibiting discrimination does not preclude punitive damages if the policies are ineffective.

There is no single factor that determines whether [Defendant] acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights. In determining whether to award punitive damages, you may consider factors such as:

[(1) whether [Defendant] engaged in a pattern of discrimination toward its employees];

[(2) whether [Defendant] acted spitefully or malevolently];

[(3) whether [Defendant] showed a blatant disregard for civil legal obligations];

[(4) whether [Defendant] failed to investigate reports of discrimination];

[(5) whether [Defendant] failed to take corrective action concerning discriminatory acts or comments by its employees]; and

[(6) whether the person accused of discrimination was included in the employer’s decision making process concerning [Plaintiff]’s [discharge] [denied promotion].]

If you find that punitive damages should be assessed against [Defendant], you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages.]

ANNOTATIONS AND COMMENTS

I. Causes of Action

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a). Pattern Instruction 4.5 provides instructions for discharge and failure to promote claims, but it is also intended to be used for any other case in which the plaintiff alleges a discriminatory adverse employment action, including wage discrimination, demotion, or other serious and material change to the plaintiff’s terms and conditions of employment. Pattern Instruction 4.5 may also be used as the starting point for jury instructions in cases in which the plaintiff alleges the adverse employment action of failure to hire, though slight modifications will be required. Pattern Instruction 4.5 may be used for general claims that a hostile work environment culminated in a “tangible employment action,” such as discharge or demotion. Pattern Instruction 4.5 is meant to be used for general disparate treatment claims; for claims where the disparate treatment is allegedly based on the plaintiff’s refusal of unwelcome sexual advances, Pattern Instruction 4.8, infra, applies.

Pattern Instruction 4.5 is not intended to be used for hostile work environment claims that do not involve a tangible employment action; Pattern Instructions 4.6 and 4.7, infra, address those claims.

Pattern Instruction 4.5 is intended to be used for all claims under Title VII, including claims of color discrimination. It is rare to have a claim of color discrimination separate from a claim of race discrimination, but the issue does occasionally arise. See, e.g., Walker v. Sec’y of Treasury, 713 F. Supp. 403, 408 (N.D. Ga. 1989) (finding that light-skinned black person’s Title VII color discrimination claim for termination by darkskinned black supervisor “stated a claim for relief that cannot be reached by summary judgment”).

Pattern Instruction 4.5 is also intended to be used for claims under the Pregnancy Discrimination Act, 42 U.S.C. §2000e(k), which provides that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. §2000e(k). It further provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” Id.

II. Elements and Defenses

A. “Adverse Employment Action”

To prevail on a Title VII disparate treatment claim, the plaintiff must prove that the employer subjected the plaintiff to an “adverse employment action.” Pattern Instruction 4.5 does not define “adverse employment action.” In most cases, the question whether an employer’s decision amounts to an “adverse employment action” will not be disputed because the decision is clearly an adverse employment action, such as termination, failure to promote, or demotion with pay cut. If there is a fact dispute as to whether an employment action amounts to an “adverse employment action,” the instruction and verdict form should be adapted accordingly. An “adverse employment action” is a “a serious and material change in the terms, conditions, or privileges of employment.” Crawford v. Carroll, 529 F.3d 961, 970-71 (11th Cir. 2008) (internal quotation marks omitted).

B. Causation

Pattern Instruction 4.5 charges that the protected trait (race, sex, religion, national origin, color) must be a “motivating factor” in the employer’s decision. This instruction is based on the statutory language. See 42 U.S.C. §2000e-2(m) (“[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”). There is Eleventh Circuit precedent approving jury instructions stating that the protected trait must be a “substantial or motivating factor,” e.g., Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir. 1999), and the previous version of the pattern instructions used this language. The Committee believes, however, that the addition of the word “substantial” is potentially confusing, and Pattern Instruction 4.5 charges in accordance with the statutory text, which requires only that the protected trait be a “motivating factor” in the employer’s decision.

Pattern Instruction 4.5 applies the “motivating factor” standard to all Title VII disparate treatment claims, not just “mixed motive” claims. The Supreme Court reserved the question of “when, if ever, [42 U.S.C. §2000e-2(m)] applies outside of the mixed-motive context.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 n.1 (2003). The Committee believes that, as a practical matter, many cases that are submitted to a jury could be construed as “mixed motive” cases, which is why the Committee recommends “motivating factor” language for Pattern Instruction 4.5.

For the employee’s protected trait to be a motivating factor in the employer’s decision, the employer must have been aware of the protected trait. E.g., Lubetsky v. Applied Card Sys., Inc., 296 F.3d 1301, 1305 (11th Cir. 2002). In cases where there is a fact question on this issue, the court may consider adding a special interrogatory on this point.

C. Pretext (In General)

When analyzing employment discrimination claims in the context of pretrial motions, the courts typically employ the framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under that framework, the plaintiff must establish a prima facie case of discrimination. E.g., Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). Once the plaintiff has made a prima facie case, the employer may articulate a legitimate nondiscriminatory reason for its action. Id. If the employer articulates a legitimate nondiscriminatory reason, then the plaintiff must produce evidence that the employer’s proffered reason is pretext for discrimination. Id. “The plaintiff can show pretext ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’” Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). If the decisionmaker’s statements can be interpreted as an admission that the proffered reason was a cover-up for discrimination, for example, then a jury may consider the statement and decide whether discrimination was the real reason for the employer’s decision. Id. at 1308-09.

The Eleventh Circuit has concluded that “it is unnecessary and inappropriate to instruct the jury on the McDonnell Douglas analysis” because such an instruction has potential to confuse the jury. Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir. 1999). Nonetheless, it is not error to instruct a jury that one way a plaintiff may show intentional discrimination is by showing that the employer’s stated reasons for its actions were not true and were instead pretext or cover to hide discrimination. Palmer v. Bd. of Regents of Univ. Sys. of Ga., 208 F.3d 969, 974-75 (11th Cir. 2000). It is also not error to refuse to give a pretext instruction. Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1196 (11th Cir. 2004).

Pattern Instruction 4.5 includes an optional pretext charge, which instructs the jury that it may consider the circumstances of the employer’s decision – including whether the jury believes the employer’s proffered nondiscriminatory reason for its decision – in deciding whether the decision was motivated by a protected trait.

D. Pretext (Failure to Promote)

In a failure to promote or failure to hire case where the defendant has presented evidence of a legitimate nondiscriminatory reason for its decision but there is a question of fact as to the relative qualifications of plaintiff and the comparator, the court may consider adding a special interrogatory on the issue. The Eleventh Circuit stated that “‘a plaintiff cannot prove pretext by simply arguing or even by showing that he was better qualified than the [person] who received the position he coveted. A plaintiff must show not merely that the defendant’s employment decisions were mistaken but that they were in fact motivated by race.’” Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (per curiam) (alteration in original) (quoting Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006)). Rather, “a plaintiff must show that the disparities between the successful applicant’s and his own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.” Id. (internal quotation marks omitted).

E. Cat’s Paw

In Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), the Supreme Court approved a “cat’s paw” theory of causation in the context of a case under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §4301 et seq. (“USERRA”). In Staub, the plaintiff sought to hold his employer liable for the antimilitary animus of his supervisors, who did not make the ultimate decision to fire the plaintiff but did make unfavorable reports that led to the plaintiff’s termination. The Supreme Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Id. at 1194 (reversing Seventh Circuit’s grant of judgment as a matter of law for employer because Seventh Circuit incorrectly required decisionmaker to be wholly dependent on advice of supervisors with discriminatory animus; declining to analyze district court’s jury instruction).

At the time of this publication, there have been no Supreme Court or Eleventh Circuit cases that specifically apply Staub beyond the USERRA context, but the Committee believes that the reasoning of Staub may apply in cases outside the USERRA context – including Title VII cases. USERRA and Title VII discrimination claims turn on whether the discriminatory animus is a “motivating factor” in the employer’s decision. 38 U.S.C. §4311(c)(1); 42 U.S.C. §2000e-2(m).

Pattern Instruction 4.5 includes an optional cat’s paw charge that instructs the jury to consider three elements in determining whether plaintiff’s protected trait was a motivating factor in the defendant’s decision. The optional cat’s paw charge is to be used only in cases where the plaintiff claims that

(1) the employer’s decision was based on the recommendation of the plaintiff’s supervisor and
(2) the plaintiff’s protected trait was a motivating factor in the supervisor’s recommendation.

F. The “Same Decision” Defense

If the Defendant prevails on a “same decision” defense, the jury should award no compensatory or punitive damages, even though Plaintiff has proven that “race, color, religion, sex or national origin was a motivating factor.” See 42 U.S.C. §2000e-5(g)(2) (B) (providing that in cases where the employer prevails on the “same decision” defense, the court may grant declaratory relief, limited injunctive relief and limited attorney’s fees and costs; this is an issue for the court, not the jury). Accordingly, Pattern Instruction 4.5 instructs the jury that it need not consider the issue of damages if it finds in favor of the defendant on this defense.

III. Remedies

Following the Civil Rights Act of 1991, a prevailing plaintiff in a Title VII action may recover back pay, other past and future pecuniary losses, damages for pain and suffering, punitive damages (except that no punitive damages may be awarded against government agencies or political subdivisions), and reinstatement or front pay.

A. Compensatory and Punitive Damages

The award of compensatory and punitive damages in a Title VII employment discrimination action is governed by 42 U.S.C. §1981a. See 42 U.S.C. §§1981a(a)(1), (b)(2). Equitable relief is authorized under 42 U.S.C. §2000e-5(g) and is discussed in more detail below.

42 U.S.C. §1981a(a)(1) authorizes a prevailing plaintiff to receive compensatory damages, which may be awarded for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” Id. §1981a(b)(3). Compensatory damages do not include “backpay, interest on backpay, or any other type of relief authorized under” 42 U.S.C. §2000e-5(g). Compensatory damages are capped under 42 U.S.C. §1981a(b)(3), as discussed in more detail below.

42 U.S.C. §1981a(b)(1) also authorizes a prevailing plaintiff to receive punitive damages if the plaintiff “demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Punitive damages are not available against “a government, government agency or political subdivision.” Id. §1981a(b)(1).

Pattern Instruction 4.5 instructs the jury on the definitions of “malice” and “reckless indifference.” See Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1280 (11th Cir. 2008) (“Malice or reckless indifference is established by a showing that the employer discriminated in the face of the knowledge that its actions would violate federal law.”) (internal quotation marks omitted). Examples of conduct that could support a punitive damages award include: “‘(1) a pattern of discrimination, (2) spite or malevolence, or (3) a blatant disregard for civil obligations.’” Id. (quoting Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322-23 (11th Cir. 1999)). The mere fact that an employer has an antidiscrimination policy will not insulate the employer from punitive damages; if the employer’s policy is not enforced, the jury could conclude that the employer did not attempt “good faith compliance with the civil rights laws.” Id. at 1281-82.

Pattern Instruction 4.5 also instructs the jury on who must have knowledge of the violations for punitive damages to be assessed against the employer. In the Eleventh Circuit, “punitive damages will ordinarily not be assessed against employers with only constructive knowledge” of the violations. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1279-80 (11th Cir. 2002); accord Splunge v. Shoney’s Inc., 97 F.3d 488, 491 (11th Cir. 1996). To get punitive damages, a Title VII plaintiff must “impute liability for punitive damages to” the employer. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 539 (1999). To do this, the plaintiff may establish that an employee of the defendant acting in a “managerial capacity” acted with malice or reckless indifference to the plaintiff’s federally protected rights. Id. at 543, 545-46. Though the Supreme Court did not define “managerial capacity,” the Court suggested that the employee must be “important, but perhaps need not be the employer’s top management, officers, or directors to be acting in a managerial capacity.” Id. at 543 (internal quotation marks omitted). The Court stated that “determining whether an employee” acts in a “managerial capacity” “requires a fact-intensive inquiry” and listed several factors for the courts to review in making this determination: “the type of authority that the employer has given to the employee, the amount of discretion that the employee has in what is done and how it is accomplished.” Id. Even after Kolstad, the Eleventh Circuit has continued to require that the conduct be taken or approved by the employer’s “higher management.” Miller, 277 F.3d at 1280 (citing Dudley, 166 F.3d at 1323). The Miller court did acknowledge that what constitutes “higher management” can vary widely from company to company – while a Wal-Mart store manager who is separated from higher management by many layers may not be higher management, a manager at a small company who is separated from the president of the company by only one person could be considered higher management. Id. at 1279.

The award of damages is limited by 42 U.S.C. §1981a(b)(3), which provides for a cap on the “sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section.” The damages award shall not exceed, for each plaintiff:

(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;

(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and

(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and

(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300.000.

42 U.S.C. §1981a(b)(3). A major limitation on the recovery of punitive damages is the Supreme Court’s announcement that few awards exceeding a single digit ratio between punitive and compensatory damages will satisfy due process. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003); see also Goldsmith, 513 F.3d at 1283-8418 (discussing Campbell and upholding punitive damages award under 42 U.S.C. §1981 where the ratio of punitive damages to compensatory damages was approximately 9.2 to 1).

In some cases, a party may bring parallel claims under Title VII and §1981 or the Equal Protection Clause. Punitive damages are available under 42 U.S.C. §1981 and 42 U.S.C. §1983 and are not capped by Title VII’s damages cap. Goldsmith, 513 F.3d at 1284-85 (upholding punitive damages award of $500,000 where analogous Title VII cap was $100,000); Bogle v. McClure, 332 F.3d 1347, 1355, 1362 (11th Cir. 2003) (rejecting argument that Title VII cap should be applied by analogy in cases under 42 U.S.C. §1983 and upholding award of approximately $17 million where analogous Title VII cap was $300,000).

If a plaintiff seeks compensatory or punitive damages, either party may demand a trial by jury. 42 U.S.C. §1981a(c). Pursuant to this provision, the jury would determine the appropriate amount of compensatory and punitive damages to be awarded (without being instructed of the statutory caps), and the court would then reduce the amount in accordance with the limitations stated in §1981a if necessary. 42 U.S.C. §1981a(c)(2).

B. Back Pay

42 U.S.C. §2000e-5(g)(1) specifically provides for the award of back pay from the date of judgment back to two years prior to the date the plaintiff files a complaint with the Equal Employment Opportunity Commission. This section also provides that “[i]nterim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” Id.; see also Nord v. U.S. Steel Corp., 758 F.2d 1462, 1470-73 (11th Cir. 1985) (stating that the purpose behind Title VII is to “make whole” the complainant, therefore back pay is recoverable up to the date judgment is entered and must exclude interim earnings).

Back pay encompasses more than just salary; it also includes fringe benefits such as vacation, sick pay, insurance and retirement benefits. Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 263 (5th Cir. 1974); accord Crabtree v. Baptist Hosp. of Gadsden, Inc., 749 F.2d 1501, 1502 (11th Cir. 1985).

In an “after-acquired evidence” case, where the employer discovers evidence that would have caused it to terminate the employee after it terminates the employee for unlawful reasons, the after-acquired evidence does not bar recovery; it only affects the remedy. Wallace v. Dunn Constr. Co., 62 F.3d 374, 380-81 (11th Cir. 1995) (en banc). In such cases, the calculation of back pay is from the date of the unlawful discharge to the date the defendant discovers evidence of employee misconduct. See id. (authorizing back pay from date of unlawful discharge to date employer discovered evidence that employee lied in her employment application).

Back pay is recoverable only through 42 U.S.C. §2000e-5(g)(1); it is specifically exempted from the definition of compensatory damages under 42 U.S.C. §1981a(b)(2), so it is not limited by the damages cap of §1981a. Cf. Landgraf v. USI Film Prods., 511 U.S. 244, 253-55 (1994) (stating that compensatory damages are in addition to “and do not replace or duplicate the backpay remedy” and that back pay is excluded from compensatory damages “to prevent double recovery”).

In the Eleventh Circuit, back pay is considered equitable relief, so it is a question for the court and not the jury. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1184 (11th Cir. 2010). “Of course, when legal and equitable issues are tried together and overlap factually, the Seventh Amendment requires that ‘all findings necessarily made by the jury in awarding [a] verdict to [a party on legal claims] are binding on... the trial court’ when it sits in equity.” Id. (quoting Williams v. City of Valdosta, 689 F.2d 964, 976 (11th Cir. 1982) (alterations in original)).

Even if the legal and equitable issues do not overlap, the parties may consent to have the issue tried by a jury, or the court may try the issue with an advisory jury. Fed. R. Civ. P. 39(c). Pattern Instruction 4.5 has been prepared to permit the jury to decide the claim for back pay. If the judge decides not to submit the issue to the jury, the jury should be told that should the jury find in favor of the plaintiff, the court will award pay lost as a result of defendant’s discrimination, and the jury should not make any award for lost pay.

C. Front Pay

The award of “front pay” covers monetary damages for future economic loss, and it is only awarded when reinstatement is not feasible “as a make-whole remedy.” E.E.O.C. v. W & O, Inc., 213 F.3d 600, 619 (11th Cir. 2000). Front pay is an equitable remedy to be determined by the court at the conclusion of the jury trial. Id.; accord Ramsey v. Chrysler First, Inc., 861 F.2d 1541, 1545 (11th Cir. 1988).

D. Attorney’s Fees

Title VII explicitly authorizes the court, in its discretion, to award attorney’s fees to “the prevailing party.” 42 U.S.C. §2000e-5(k). The attorney’s fee award is an issue for the court, not the jury.

IV. When the Case Involves Disparate Treatment Claims Under More than One Statute

In some cases, a plaintiff will bring a disparate treatment claim under more than one statute based on the same set of facts (Title VII, Equal Protection Clause, and 42 U.S.C. §1981). The jury instruction on these separate claims can be combined because the analysis of disparate treatment claims under Title VII is identical to the analysis under the Equal Protection Clause and §1981 where the facts on which the claims rely are the same. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Three issues to consider when combining instructions: (1) the causation standards may differ, so the instruction and verdict form should take that into account; (2) statutes of limitations differ, so the instruction and verdict form should take that into account; (3) the availability of punitive damages differs by statute and type of defendant, so the instruction and verdict form should take that into account.

Though the Eleventh Circuit has stated that the analysis of claims under Title VII, Equal Protection Clause, and §1981 is “identical,” Crawford, 529 F.3d at 970, there are some important distinctions with regard to the causation standards under the different theories. Title VII claims are subject to a “motivating factor” causation standard. 42 U.S.C. §2000e-2(m) (“[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”). Under Title VII, if a plaintiff establishes that a protected trait was a motivating factor that caused the employer’s decision and the employer establishes the “same decision” affirmative defense by proving that it would have taken the same action even if it had not considered the protected trait, the plaintiff can still obtain limited relief. 42 U.S.C. §2000e-5(g)(2)(B). In other words, the “same decision” defense is not a complete bar to relief under Title VII. In contrast, though the “motivating factor” standard applies in §1983/Equal Protection cases, the “same decision” defense is a complete bar in §1983/Equal Protection cases. Harris v. Shelby Cnty. Bd. of Educ., 99 F.3d 1078, 1084 n.5 (11th Cir. 1996). By the date of this publication, neither the Supreme Court nor the Eleventh Circuit had addressed whether the reasoning of Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) applies to claims under §1981 such that a “because of” causation standard applies instead of a “motivating factor” standard. Please see the annotation to Pattern Instruction 4.9, infra, for more discussion of this issue. If the “because of” standard applies, then the jury should be instructed on that causation standard, and there is no same decision affirmative defense because the plaintiff must show that the protected trait was the reason for the decision. If the “motivating factor” standard applies to §1981 claims, then the “same decision” defense is a complete bar to recovery, just as it is in §1983/Equal Protection cases.

4 PJI 6 | TITLE VII - CIVIL RIGHTS ACT - WORKPLACE HARASSMENT BY SUPERVISOR - NO TANGIBLE EMPLOYMENT ACTION TAKEN (WITH AFFIRMATIVE DEFENSE BY EMPLOYER)

In this case, [Plaintiff] claims that [Defendant] violated Federal Civil Rights statutes that prohibit employers from discriminating against employees in the terms or conditions of employment because of their [race/religion/sex/national origin]. These statutes prohibit the creation of a hostile work environment caused by harassment because of an employee’s [race/religion/sex/national origin].

Specifically, [Plaintiff] claims that [his/her] supervisor harassed [him/her] because of [his/her] [race/religion/sex/national origin] and that the harassment created a hostile work environment.

[Defendant] denies [Plaintiff]’s claims and asserts that [describe the defendant’s defense].

To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Plaintiff]’s supervisor harassed [him/her] because of [his/her] [race/religion/sex/national origin];

Second: The harassment created a hostile work environment for [Plaintiff]; and

third: [Plaintiff] suffered damages because of the hostile work environment.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

A “hostile work environment” created by harassment because of [race/religion/sex/national origin] exists if:

(a) [Plaintiff] was subjected to offensive acts or statements about [race/religion/sex/national origin] – even if they were not specifically directed at [him/her];

(b)[Plaintiff] did not welcome the offensive acts or statements, which means that [Plaintiff] did not directly or indirectly invite or solicit them by [his/her] own acts or statements;

(c) the offensive acts or statements were so severe or pervasive that they materially altered the terms or conditions of [Plaintiff]’s employment;

(d) a reasonable person – not someone who is overly sensitive – would have found that the offensive acts or statements materially altered the terms or conditions of the person’s employment; and

(e) [Plaintiff] believed that the offensive acts or statements materially altered the terms or conditions of [his/her] employment.

To determine whether the conduct in this case was “so severe or pervasive” that it materially altered the terms or conditions of [Plaintiff]’s employment, you should consider all the circumstances, including:

A “material alteration” is a significant change in conditions. Conduct that amounts only to ordinary socializing in the workplace does not create a hostile work environment. A hostile work environment will not result from occasional horseplay, [sexual flirtation,] offhand comments, simple teasing, sporadic use of offensive language, or occasional jokes related to [race/religion/sex/national origin]. But discriminatory intimidation, ridicule, insults, or other verbal or physical conduct may be so extreme that it materially alters the terms or conditions of employment.

If you find that [Plaintiff]’s supervisor harassed [him/her] because of [his/her] [race/religion/sex/national origin], and that the harassment created a hostile work environment, then you must decide whether [he/she] suffered damages as a result. If the damages would not have existed except for the hostile work environment, then you may find that [Plaintiff] suffered those damages because of the hostile work environment.

[Without Affirmative Defense: If you find that [Plaintiff] suffered damages because of the hostile work environment, you must decide the issue of [his/her] compensatory damages.]

[Including Affirmative Defense: If you find that [Plaintiff] suffered damages because of the hostile work environment, you must decide whether [Defendant] has established [his/her/its] affirmative defense.

To succeed on its affirmative defense, [Defendant] must prove each of the following facts by a preponderance of the evidence:

First: [Defendant] exercised reasonable care to prevent and promptly correct any harassing behavior because of [race/religion/sex/national origin] in the workplace; and

Second: [Plaintiff] [unreasonably failed to take advantage of preventive or corrective opportunities [Defendant] provided to avoid or correct the harm.] [took advantage of [Defendant]’s preventative or corrective opportunities and [Defendant] responded by taking reasonable and prompt corrective action.]

To determine whether [Defendant] exercised reasonable care, you may consider whether:

(a) [Defendant] created an explicit policy against harassment because of [race/religion/sex/national origin] in the workplace;

(b) [Defendant] communicated the policy to [his/her/its] employees; and

(c) the policy provided a reasonable process for [Plaintiff] to complain to higher management.

[To determine whether [Plaintiff] unreasonably failed to take advantage of a preventive or corrective opportunity [Defendant] provided, you may consider, for example, whether [Plaintiff] unreasonably failed to follow a complaint procedure [Defendant] provided.]

If you find that [Defendant] established [his/her/its] affirmative defense, you must indicate that on the verdict form, and you will not decide the issue of [Plaintiff]’s damages. If you find that [Defendant] did not establish [his/her/its] affirmative defense, you must decide the issue of [Plaintiff]’s 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 hostile work environment, 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.

You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:

(a) net lost wages and benefits to the date of your verdict; and

(b) emotional pain and mental anguish.

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

If, however, [Defendant] shows that [Plaintiff] did not make reasonable efforts to obtain any work, then [Defendant] does not have to prove that comparable work was available.

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.]

[Punitive Damages: [Plaintiff] also asks you to award punitive damages. The purpose of punitive damages is not to compensate [Plaintiff] but, instead, to punish [Defendant] for wrongful conduct and to deter similar wrongful conduct. You will only reach the issue of punitive damages if you find for [Plaintiff] and award [him] [her] compensatory damages.

To be entitled to an award of punitive damages [Plaintiff] must prove by a preponderance of the evidence that [Defendant] acted with either malice or with reckless indifference toward [Plaintiff]’s federally protected rights. Specifically, [Plaintiff] must show that an employee of [Defendant], acting in a managerial capacity, either acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights.

There is no bright-line rule about which employees act in a managerial capacity. You must determine whether an employee acted in a “managerial capacity” based upon the type of authority [Defendant] gave the employee and the amount of discretion that the employee has in what is done and how it is accomplished.

To show that [Defendant] acted with malice, [Plaintiff] must show that an employee acting in a managerial capacity knew that federal law prohibits discrimination and discriminated against [Plaintiff] anyway. To show that [Defendant] acted with reckless indifference to [Plaintiff]’s federally protected rights, [Plaintiff] must show that an employee acting in a managerial capacity acted with serious disregard for whether the conduct violated federal law. Either malice or reckless indifference is sufficient to entitle [Plaintiff] to an award of punitive damages; [Plaintiff] need not prove both.

An employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where the managerial employees’ acts are contrary to the employer’s good faith efforts to comply with the law by implementing policies and programs designed to prevent unlawful discrimination in the workplace. However, the mere existence of policies prohibiting discrimination does not preclude punitive damages if the policies are ineffective.

There is no single factor that determines whether [Defendant] acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights. In determining whether to award punitive damages, you may consider factors such as:

If you find that punitive damages should be assessed against [Defendant], you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages.]

ANNOTATIONS AND COMMENTS

I. Cause of Action

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a). Such disparate treatment can take the form of a “hostile work environment that changes the terms and conditions of employment, even though the employee is not discharged, demoted, or reassigned.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (en banc) (internal quotation marks omitted).

Pattern Instruction 4.6 provides instructions for Title VII workplace harassment by a supervisor. Pattern Instruction 4.7 provides instructions for Title VII workplace harassment by a co-worker and may also be used where the alleged harasser is a third party, such as a customer.

A. Not For Tangible Employment Action Cases

Pattern Instruction 4.6 is intended to be used for any Title VII hostile work environment claim where there is no contention that the hostile work environment culminated in a “tangible employment action.” For those claims, Pattern Instruction 4.5, supra, or Pattern Instruction 4.8, infra, may be used. Pattern Instruction 4.5 is a general disparate treatment charge, and Pattern Instruction 4.8 applies to a subset of “tangible employment action” claims where the disparate treatment is alleged to be based on the refusal of unwelcome sexual advances.

In a case where there is a fact dispute whether the hostile work environment culminated in a tangible employment action, it may be necessary to combine the instructions and to instruct the jury on the definition of “tangible employment action.” “‘A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir. 2006) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). In such a case, if the jury finds a tangible employment action, it will not need to consider the affirmative defense available in hostile work environment cases based on a supervisor’s harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998) (“No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.”).

In Pennsylvania State Police v. Suders, 542 U.S. 129, 140 (2004), the Supreme Court concluded that constructive discharge due to a “supervisor’s official act” is a “tangible employment action,” so the affirmative defense established in Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998) does not apply. In contrast, constructive discharge due to continuing harassment by a supervisor is not a “tangible employment action,” so the Faragher defense is available. Suders, 542 U.S. at 140. Please see “Affirmative Defense” section below for more information on the Faragher defense. The elements of a constructive discharge claim are addressed in Pattern Instruction 4.23, infra.

B. Retaliatory Hostile Work Environment Cases

The Eleventh Circuit recognized a cause of action for retaliatory hostile work environment under Title VII. Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012). The Eleventh Circuit in Gowski applied the “severe or pervasive” requirement for a hostile work environment claim that is described in Pattern Instruction 4.6 (and not the “materially adverse action” standard applied to retaliation claims under Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)), so Pattern Instruction 4.6 may be modified for use in a retaliatory hostile work environment case – the main difference would be that the questions regarding whether protected status motivated the hostile work environment would need to ask whether protected activity motivated the hostile work environment. If there is a fact dispute regarding whether the plaintiff engaged in protected activity, then instructions and interrogatories from Pattern Instruction 4.21, infra, should be inserted into Pattern Instruction 4.6.

II. Elements and Defenses

The definition of a hostile work environment is adapted from Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-23 (1993). Reeves v. C.H. Robinson Worldwide, Inc., 59414 F.3d 798, 808-09 (11th Cir. 2010) (en banc); Mendoza v. Borden, Inc., 195 F.3d 1238, 1245-46 (11th Cir. 1999) (en banc).

A. Supervisor

Pattern Instruction 4.6 assumes that there is no genuine fact dispute as to whether the harasser is a “supervisor.” If there is a fact dispute on this issue, the instruction should be modified accordingly. “[A]n employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.” Vance v. Ball State Univ., No. 11-556, 2013 WL 3155228 (U.S. June 24, 2013).

B. “Because of” the Protected Trait

The plaintiff must prove that the hostile work environment was because of the protected trait. See Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th Cir. 2010) (en banc) (“Although gender-specific language that imposes a change in the terms or conditions of employment based on sex will violate Title VII, general vulgarity or references to sex that are indiscriminate in nature will not, standing alone, generally be actionable. Title VII is not a general civility code.”) (internal quotation marks omitted). “Evidence that co-workers aimed their insults at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee.” Id. at 811. Pattern Instruction 4.6 does not elaborate on the “because of” requirement.

C. Affirmative Defense

The Supreme Court recognized an affirmative defense to hostile work environment claims in Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998). Under this defense, an employer may be vicariously liable “for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.” Id. at 807. “The defense comprises two necessary elements:

(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

Id. If the employer exercises reasonable care to prevent and correct harassing behavior and the employee takes advantage of the preventive or corrective opportunities, the employer is still entitled to the affirmative defense if it establishes that it responded to the employee’s complaint with reasonable and prompt corrective action. Nurse “BE” v. Columbia Palms W. Hosp. Ltd. P’ship, 490 F.3d 1302, 1311-12 (11th Cir. 2007). Pattern Instruction 4.6 contains an instruction on the Faragher defense.

III. Remedies

Please refer to the annotations and comments for Pattern Instruction 4.5, supra.

4 PJI 7 | TITLE VII - CIVIL RIGHTS ACT - WORKPLACE HARASSMENT BY CO-WORKER OR THIRD PARTY - NO TANGIBLE EMPLOYMENT ACTION TAKEN

To determine whether [Defendant] exercised reasonable care, you may consider whether:

(a) net lost wages and benefits to the date of your verdict; and

(b) emotional pain and mental anguish.

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

If, however, [Defendant] shows that [Plaintiff] did not make reasonable efforts to obtain any work, then [Defendant] does not have to prove that comparable work was available.

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.]

[Punitive Damages: [Plaintiff] also asks you to award punitive damages. The purpose of punitive damages is not to compensate [Plaintiff] but, instead, to punish [Defendant] for wrongful conduct and to deter similar wrongful conduct. You will only reach the issue of punitive damages if you find for [Plaintiff] and award [him] [her] compensatory damages.

To be entitled to an award of punitive damages [Plaintiff] must prove by a preponderance of the evidence that [Defendant] acted with either malice or with reckless indifference toward [Plaintiff]’s federally protected rights. Specifically, [Plaintiff] must show that an employee of [Defendant], acting in a managerial capacity, either acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights.

There is no bright-line rule about which employees act in a managerial capacity. You must determine whether an employee acted in a “managerial capacity” based upon the type of authority [Defendant] gave the employee and the amount of discretion that the employee has in what is done and how it is accomplished.

To show that [Defendant] acted with malice, [Plaintiff] must show that an employee acting in a managerial capacity knew that federal law prohibits discrimination and discriminated against [Plaintiff] anyway. To show that [Defendant] acted with reckless indifference to [Plaintiff]’s federally protected rights, [Plaintiff] must show that an employee acting in a managerial capacity acted with serious disregard for whether the conduct violated federal law. Either malice or reckless indifference is sufficient to entitle [Plaintiff] to an award of punitive damages; [Plaintiff] need not prove both.

An employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where the managerial employees’ acts are contrary to the employer’s good faith efforts to comply with the law by implementing policies and programs designed to prevent unlawful discrimination in the workplace. However, the mere existence of policies prohibiting discrimination does not preclude punitive damages if the policies are ineffective.

There is no single factor that determines whether [Defendant] acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights. In determining whether to award punitive damages, you may consider factors such as:

If you find that punitive damages should be assessed against [Defendant], you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages.]

ANNOTATIONS AND COMMENTS

I. Cause of Action

A. Not For Tangible Employment Action Cases

B. Retaliatory Hostile Work Environment Cases

II. Elements and Defenses

A. Supervisor

B. “Because of” the Protected Trait

C. Affirmative Defense

III. Remedies

Please refer to the annotations and comments for Pattern Instruction 4.5, supra.

4 PJI 8 | TITLE VII - CIVIL RIGHTS ACT - WORKPLACE HARASSMENT - UNWELCOME SEXUAL ADVANCES -TANGIBLE EMPLOYMENT ACTION TAKEN

In this case, [Plaintiff] claims that [Defendant] violated Federal Civil Rights statutes that prohibit employers from discriminating against employees in the terms and conditions of employment because of the employee’s sex. These statutes prohibit sexual harassment that culminates in an adverse tangible employment action.

Specifically, [Plaintiff] claims that [Supervisor] discriminated against [him/her] by making unwelcome sexual advances toward [him/her] and that [Supervisor] took an adverse tangible employment action against [him/her] because [he/she] rejected those unwelcome advances.

[Defendant] denies [Plaintiff]’s claim and asserts that [describe the defendant’s defense].

To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Supervisor] made unwelcome sexual advances toward [Plaintiff];

Second: [Supervisor] took an adverse tangible employment action against [Plaintiff];

Third: [Plaintiff]’s rejection of the unwelcome sexual advances was a motivating factor that prompted [Supervisor] to take the adverse tangible employment action; and

Fourth: [Plaintiff] suffered damages because of the adverse tangible employment action;

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

A tangible employment action is a significant change in employment status. If you find that [Supervisor] [describe adverse tangible employment action at issue], you have found that [Supervisor] took an adverse “tangible employment action” against [Plaintiff], and you must decide whether [Plaintiff]’s rejection of [Supervisor]’s unwelcome sexual advances was a motivating factor that prompted [Supervisor] to take the tangible employment action. To prove that [his/her] rejection of [Supervisor]’s unwelcome sexual advances was a motivating factor in [Supervisor]’s decision, [Plaintiff] does not have to prove that [his/her] rejection of the unwelcome sexual advances was the only reason that [Supervisor] took the adverse tangible employment action. It is enough if [Plaintiff] proves that [his/her] rejection of the unwelcome sexual advances influenced the decision. If [Plaintiff]’s rejection of [Supervisor]’s unwelcome sexual advances made a difference in [Supervisor]’s decision, you may find that it was a motivating factor in the decision.

Unlawful sexual harassment may take the form of unwelcome sexual advances, and it is unlawful for a supervisor to change – or threaten to change – the terms and conditions of an employee’s employment to force or coerce, or to attempt to force or coerce, sexual favors from the employee.

A supervisor’s demand or threat for sexual favors must be

(1) one that a reasonable person would regard as a real or serious effort by the supervisor to gain a sexual favor, and

(2) unwelcome to the employee.

That means that the employee did not expressly or implicitly welcome or invite the sexual advances, and the employee regarded the supervisor’s conduct as undesirable or offensive. [The fact that an employee may have consented to engaging in sex-related conduct in response to a demand or threat does not, by itself, establish that the employee invited or welcomed the conduct. But it is one of the factors you may consider.]

[Including Affirmative Defense (if applicable, see annotations): If you find that [Plaintiff]’s rejection of [Supervisor]’s unwelcome sexual advances was a motivating factor that prompted [Supervisor] to take an adverse tangible employment action, you must decide whether [Supervisor] has shown by a preponderance of the evidence that [he/she/it] would have [describe adverse tangible employment action] [Plaintiff] even if [Supervisor] had not taken [Plaintiff]’s rejection of the unwelcome sexual advances into account. If you find that [Plaintiff] would [describe adverse tangible employment action] for reasons other than [his/her] rejection of [Supervisor]’s unwelcome sexual advances, you must make that finding in your verdict.

If you find for [Plaintiff] and against [Defendant] on this defense, you must decide whether [Plaintiff] suffered damages because of the adverse tangible employment action.]

[Without Affirmative Defense: If you find that [Plaintiff]’s rejection of [Supervisor]’s unwelcome sexual advances was a motivating factor that prompted [Supervisor] to take an adverse tangible employment action, you must decide whether [Plaintiff] suffered damages because of the adverse tangible employment action.]

If the damages would not have existed except for the adverse tangible employment action, then you may find that [Plaintiff] suffered those damages because of the adverse tangible employment action. If you find that [Plaintiff] suffered damages because of the adverse tangible employment action, 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 the adverse tangible 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.

You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:

(a) net lost wages and benefits from the date of the adverse tangible employment action to the date of your verdict; and

(b) emotional pain and mental anguish.

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

If, however, [Defendant] shows that [Plaintiff] did not make reasonable efforts to obtain any work, then [Defendant] does not have to prove that comparable work was available.

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.]

[Punitive Damages: [Plaintiff] also asks you to award punitive damages. The purpose of punitive damages is not to compensate [Plaintiff] but, instead, to punish [Defendant] for wrongful conduct and to deter similar wrongful conduct. You will only reach the issue of punitive damages if you find for [Plaintiff] and award [him] [her] compensatory damages.

To be entitled to an award of punitive damages [Plaintiff] must prove by a preponderance of the evidence that [Defendant] acted with either malice or with reckless indifference toward [Plaintiff]’s federally protected rights. Specifically, [Plaintiff] must show that an employee of [Defendant], acting in a managerial capacity, either acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights. There is no bright-line rule about which employees act in a managerial capacity. You must determine whether an employee acted in a “managerial capacity” based upon the type of authority [Defendant] gave the employee and the amount of discretion that the employee has in what is done and how it is accomplished.

To show that [Defendant] acted with malice, [Plaintiff] must show that an employee acting in a managerial capacity knew that federal law prohibits discrimination and discriminated against [Plaintiff] anyway. To show that [Defendant] acted with reckless indifference to [Plaintiff]’s federally protected rights, [Plaintiff] must show that an employee acting in a managerial capacity acted with serious disregard for whether the conduct violated federal law. Either malice or reckless indifference is sufficient to entitle [Plaintiff] to an award of punitive damages; [Plaintiff] need not prove both.

An employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where the managerial employees’ acts are contrary to the employer’s good faith efforts to comply with the law by implementing policies and programs designed to prevent unlawful discrimination in the workplace. However, the mere existence of policies prohibiting discrimination does not preclude punitive damages if the policies are ineffective.

There is no single factor that determines whether [Defendant] acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights. In determining whether to award punitive damages, you may consider factors such as:

If you find that punitive damages should be assessed against [Defendant], you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages.]

ANNOTATIONS AND COMMENTS

I. Cause of Action

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex and other protected traits. 42 U.S.C. §2000e-2(a). An employer may be held liable under Title VII if a supervisor takes a “tangible employment action” (such as discharge or demotion) against the employee because the employee refused to give in to the supervisor’s sexual demands. E.g., Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1245 (11th Cir. 2004); accord Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001) (“[W]hen a supervisor engages in harassment which results in an adverse ‘tangible employment action’ against the employee, the employer is automatically held vicariously liable for the harassment.”). Pattern Instruction 4.8 addresses this type of disparate treatment claim, which the courts previously referred to as “quid pro quo” claims but now refer to as “tangible employment action” sexual harassment claims. Frederick, 246 F.3d at 1311.

For all other “tangible employment action” disparate treatment claims, Pattern Instruction 4.5, supra, may be used. For cases where the plaintiff’s claims are based on a hostile work environment but there is no contention that the hostile work environment culminated in a tangible employment action. Pattern Instruction 4.6 (supervisor harassment), supra, or Pattern Instruction 4.7 (co-worker or third party harassment), supra, may be used.

II. Elements

A. Elements

The elements of a “tangible employment action” sexual harassment claim (also called “quid pro quo” claim) are derived from cases such as Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231-32, (11th Cir. 2006) and Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 1245 (11th Cir. 2004). In “tangible employment action” sexual harassment cases, the employer is strictly liable for the supervisor’s unlawful conduct. See, e.g., Hulsey, 367 F.3d at 1245 (“An employer is liable under Title VII if it (even unknowingly) permits a supervisor to take a tangible employment action against an employee because she refused to give in to his sexual overtures... regardless of whether the employee took advantage of any employer-provided system for reporting harassment.”); Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001) (“[W]hen a supervisor engages in harassment which results in an adverse ‘tangible employment action’ against the employee, the employer is automatically held vicariously liable for the harassment.”).

B. “Tangible Employment Action”

A “tangible employment action” is required to prevail on a “tangible employment action” theory. Pattern Instruction 4.8 does not define “tangible employment action.” If there is a fact dispute as to whether an employment action amounts to a “tangible employment action,” the instruction and verdict form should be adapted accordingly. “‘A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir. 2006) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).

C. Causation

If the employee establishes that the employee rejected the supervisor’s unwelcome sexual advances and that the employee suffered a tangible employment action, the employee must still establish that the employee’s refusal of the supervisor’s unwelcome sexual advances was a motivating factor that prompted the tangible employment action. See, e.g., Myers v. Cent. Fla. Invs., Inc., 237 F. App’x 452, 455 (11th Cir. 2007) (per curiam) (affirming summary judgment against plaintiff on tangible employment action theory because plaintiff “failed to offer evidence rebutting” the employer’s legitimate nondiscriminatory reason for her termination). In cases where the dispute centers on the causation element, the court may wish to include a modified version of the legitimate nondiscriminatory reason instruction (and the optional pretext instruction) from Pattern Instruction 4.5, supra.

A “tangible employment action” is an adverse employment action such as a termination or a denied promotion. Therefore, Pattern Instruction 4.8 includes the causation language applicable to Title VII disparate treatment claims: “motivating factor,” and Pattern Instruction 4.8 also includes an optional “same decision” defense charge. See Alwine v. Buzas, 89 F. App’x 196, 210-11 (10th Cir. 2004) (finding no error in district court’s “mixed motive” defense instruction on plaintiff’s “quid pro quo harassment claim”); cf. Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) (concluding that district court did not abuse its discretion in giving a mixed motive instruction – including the same decision defense – because the plaintiff had presented sufficient evidence for a reasonable jury to conclude that sex was a motivating factor for the employer’s decision).

III. Remedies

Please refer to the annotations and comments for Pattern Instruction 4.5, supra.

4 PJI 9 | CIVIL RIGHTS ACT - 42 USC §1981 - RACE DISCRIMINATION IN EMPLOYMENT - DISCHARGE OR FAILURE TO PROMOTE

In this case, [Plaintiff] claims that [Defendant] violated the Federal Civil Rights statutes that prohibit employers from discriminating against an employee in the terms and conditions of employment because of the employee’s race.

Specifically, [Plaintiff] claims that [Defendant] [describe adverse employment action] [him/her] because of [his/her] race.

[Defendant] denies [Plaintiff]’s claims and asserts that [describe the defendant’s defense].

To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Defendant] [describe adverse employment action]; and

Second: [Plaintiff]’s race was a motivating factor that prompted [Defendant] to take that action.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

If you find that [Defendant] [describe adverse employment action], you must decide whether [Plaintiff]’s race was a “motivating factor” in the decision.

To prove that race was a motivating factor in [Defendant]’s decision, [Plaintiff] does not have to prove that [his/her] race was the only reason that [Defendant] [describe adverse employment action]. It is enough if [Plaintiff] proves that race influenced the decision. If [Plaintiff]’s race made a difference in [Defendant]’s decision, you may find that it was a motivating factor in the decision.

[Defendant] claims that [Plaintiff]’s race was not a motivating factor in the decision and that [he/she] [describe adverse employment action] for [another reason/other reasons]. An employer may not discriminate against an employee because of the employee’s race, but the 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 the decision [to discharge/not to promote] [Plaintiff], and you find that [Defendant]’s decision was not motivated by [Plaintiff]’s race, you must not second guess [Defendant]’s decision, and you must not substitute your own judgment for [Defendant]’s judgment – even if you disagree with it.

[Pretext (optional, see annotations): As I have explained, [Plaintiff] has the burden to prove that [his/her] race 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 [Plaintiff]’s race was a motivating factor in [Defendant]’s decision to [describe adverse employment action], you may consider the circumstances of [Defendant]’s decision. For example, you may consider whether you believe the reason[s] [Defendant] gave for the decision. If you do not believe the reason[s] [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 discriminatory reasons for the decision.]

[Including Affirmative Defense (if applicable, see annotations): If you find in [Plaintiff]’s favor for each fact [he/she] must prove, you must decide whether [Defendant] has shown by a preponderance of the evidence that [he/she/it] would have [describe adverse employment action] even if [Defendant] had not taken [Plaintiff]’s race into account. If you find that [Plaintiff] would have been [describe adverse employment action] for reasons other than [his/her] race, you must make that finding in your verdict.

If you find for [Plaintiff] and against [Defendant] on this defense, you must consider [Plaintiff]’s compensatory damages.]

[Without Affirmative Defense: If you find in [Plaintiff]’s favor for each fact [he/she] must prove, you must consider [Plaintiff]’s 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 [describe 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.

You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:

(a) net lost wages and benefits from the date of [describe adverse employment action] to the date of your verdict; and

(b) emotional pain and mental anguish.

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

If, however, [Defendant] shows that [Plaintiff] did not make reasonable efforts to obtain any work, then [Defendant] does not have to prove that comparable work was available.

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.]

[Punitive Damages: [Plaintiff] also asks you to award punitive damages. The purpose of punitive damages is not to compensate [Plaintiff] but, instead, to punish [Defendant] for wrongful conduct and to deter similar wrongful conduct. You will only reach the issue of punitive damages if you find for [Plaintiff] and award [him] [her] compensatory damages.

To be entitled to an award of punitive damages [Plaintiff] must prove by a preponderance of the evidence that [Defendant] acted with either malice or with reckless indifference toward [Plaintiff]’s federally protected rights. Specifically, [Plaintiff] must show that an employee of [Defendant], acting in a managerial capacity, either acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights.

There is no bright-line rule about which employees act in a managerial capacity. You must determine whether an employee acted in a “managerial capacity” based upon the type of authority [Defendant] gave the employee and the amount of discretion that the employee has in what is done and how it is accomplished.

To show that [Defendant] acted with malice, [Plaintiff] must show that an employee acting in a managerial capacity knew that federal law prohibits discrimination and discriminated against [Plaintiff] anyway. To show that [Defendant] acted with reckless indifference to [Plaintiff]’s federally protected rights, [Plaintiff] must show that an employee acting in a managerial capacity acted with serious disregard for whether the conduct violated federal law. Either malice or reckless indifference is sufficient to entitle [Plaintiff] to an award of punitive damages; [Plaintiff] need not prove both.

An employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where the managerial employees’ acts are contrary to the employer’s good faith efforts to comply with the law by implementing policies and programs designed to prevent unlawful discrimination in the workplace. However, the mere existence of policies prohibiting discrimination does not preclude punitive damages if the policies are ineffective.

There is no single factor that determines whether [Defendant] acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights. In determining whether to award punitive damages, you may consider factors such as:

If you find that punitive damages should be assessed against [Defendant], you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages.]

ANNOTATIONS AND COMMENTS

I. Cause of Action

42 U.S.C. §1981(a) states that “[a]ll persons within the jurisdiction of the United States shall have the same right... to make and enforce contracts.” 42 U.S.C. §1981(a). “The term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id. §1981(b). Section 1981 prohibits intentional racial discrimination in the making and enforcement of private contracts, including employment contracts.” Washington v. Kroger Co., 218 F. App’x 822, 824 (11th Cir. 2007) (per curiam).

Pattern Instruction 4.9 provides instructions for discharge and failure to promote claims, but it is also intended to be used for any other case in which the plaintiff alleges a racially discriminatory adverse employment action, including discharge, failure to promote, wage discrimination, demotion, or other serious and material changes to the plaintiff’s terms and conditions of employment. Pattern Instruction 4.9 may also be used as the starting point for jury instructions in cases in which the plaintiff alleges the adverse employment action of failure to hire, though slight modifications will be required. Finally, Pattern Instruction 4.9 may be used for claims that a race-based hostile work environment culminated in a “tangible employment action,” such as discharge or demotion. Pattern Instruction 4.9 is not intended to be used for hostile work environment claims that do not involve a tangible employment action; Pattern Instructions 4.6 and 4.7, supra, may be adapted to address §1981 claims for a race-based hostile work environment. Pattern Instruction 4.9 is also not intended to be used for §1981 retaliation claims; Pattern Instruction 4.21, infra, may be adapted to address such claims. An instruction on §1981 retaliation should incorporate the damages instructions of Pattern Instruction 4.9.11

Section 1981 prohibits race discrimination, and it does not cover purely national origin discrimination. Bullard v. OMI Ga., Inc., 640 F.2d 632, 634 (5th Cir. Unit B Mar. 1981); accord Tippie v. Spacelabs Med., Inc., 180 F. App’x 51, 56 (11th Cir. 2006) (per curiam). However, “[i]n some contexts, national origin discrimination is so closely related to racial discrimination as to be indistinguishable.” Bullard, 640 F.2d at 634 (internal quotation marks omitted).

II. Elements

A. Causation

Pattern Instruction 4.9 instructs that the jury must find that the plaintiff’s race was a “motivating factor” in the defendant’s decision. This language tracks the language of Pattern Instructions 4.1 and 4.5, supra. In First Amendment retaliation cases brought pursuant to 42 U.S.C. §1983, a “motivating factor” causation standard applies based on Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), in which the Supreme Court held that a plaintiff must show that protected First Amendment “conduct was a ‘substantial factor’ or to put it in other words, that it was a ‘motivating factor’” in the defendant’s challenged action. Id. at 287; see also Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007) (requiring that protected speech play “a substantial or motivating role in the adverse employment action”). In the Title VII context, the “motivating factor” causation standard is based on the statutory language. See 42 U.S.C. §2000e-2(m) (“[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”).

This issue may need to be revisited in the §1981 context in light of the Supreme Court’s decisions in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) and University of Texas Southwestern Medical Center v. Nassar, No. 12-484, 2013 WL 3155234 (U.S. June 24, 2013). In Gross, the Supreme Court held that to prove discrimination under the Age Discrimination in Employment Act (“ADEA”), the plaintiff must establish “but for” causation and may not prevail “by showing that age was simply a motivating factor.” Gross, 557 U.S. at 174-78. The rationale for this decision is that the ADEA’s statutory text makes it unlawful for an employer to discriminate against an individual “because of” the individual’s age. Id. at 176. Only Title VII’s antidiscrimination provision was amended to allow for employer liability where discrimination “‘was a motivating factor for any employment practice, even though other factors also motivated the practice.’” Id. at 177 n.3 (quoting 42 U.S.C. §2000e-2(m)). Also, “[b]ecause an ADEA plaintiff must establish ‘but for’ causality, no ‘same decision’ affirmative defense can exist: the employer either acted ‘because of’ the plaintiff’s age or it did not.” Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1204 (11th Cir. 2010) (per curiam). In Nassar, the Supreme Court extended the rationale of Gross to Title VII retaliation claims “[g]iven the lack of any meaningful textual difference between the text in” Title VII’s anti-retaliation provision and the ADEA’s anti-retaliation provision. Nassar, 2013 WL 3155234, at *10. Therefore, “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in [42 U.S.C.] §2000e-2(m).” Id. at *14.

At the time of this publication, neither the Supreme Court nor the Eleventh Circuit had addressed whether the reasoning of Gross and Nassar applies to claims under §1981. Section 1981 does not contain any specific causation language, such as the “motivating factor” language of Title VII or the “because of” language of the ADEA. Rather, §1981 “prohibits intentional racial discrimination in the making and enforcement of private contracts, including employment contracts.” E.g., Washington v. Kroger Co., 218 F. App’x 822, 824 (per curiam) (11th Cir. 2007). It is often said that Title VII and §1981 “have the same requirements of proof and present the same analytical framework,” e.g., id., but the test is still whether there was intent to discriminate because of race. E.g., Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1235 (11th Cir. 2000). The “motivating factor” language of §2000e-2(m) was not inserted into §1981.

Because Gross and Nassar do not squarely apply to §1981, because First Amendment cases brought pursuant to 42 U.S.C. §1983 are subject to a “motivating factor” causation standard, and because the issue had not been decided by the Supreme Court or the Eleventh Circuit prior to this publication, the Committee did not recommend changing the “motivating factor” language of Pattern Instruction 4.9. The Committee does, however, recommend that district courts review this issue prior to instructing a jury on §1981.

B. Pretext (In General)

When analyzing employment discrimination claims in the context of pretrial motions, the courts typically employ the framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under that framework, the plaintiff must establish a prima facie case of discrimination. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). Once the plaintiff has made a prima facie case, the employer may articulate a legitimate nondiscriminatory reason for its action. Id. If the employer articulates a legitimate nondiscriminatory reason, then the plaintiff must produce evidence that the employer’s proffered reason is pretext for discrimination. Id. “The plaintiff can show pretext ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’” Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). If the decisionmaker’s statements can be interpreted as an admission that the proffered reason was a cover-up for discrimination, then a jury may consider the statement and decide whether discrimination was the real reason for the employer’s decision. Id. at 1308-09.

The Eleventh Circuit has concluded that “it is unnecessary and inappropriate to instruct the jury on the McDonnell Douglas analysis” because such an instruction has potential to confuse the jury. Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir. 1999). Nonetheless, it is not error to instruct a jury that one way a plaintiff may show intentional discrimination is by showing that the employer’s stated reasons for its actions were not true and were instead pretext or cover to hide discrimination. Palmer v. Bd. of Regents of Univ. Sys. of Ga., 208 F.3d 969, 974-75 (11th Cir. 2000). It is also not necessarily error to refuse to give a pretext instruction. Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1196 (11th Cir. 2004).

Pattern Instruction 4.9 includes an optional pretext charge, which instructs the jury that it may consider the circumstances of the employer’s decision – including whether the jury believes the employer’s proffered nondiscriminatory reason for its decision – in deciding whether the decision was motivated by a protected trait.

C. Pretext (Failure to Promote)

In a failure to promote or failure to hire case where the defendant has presented evidence of a legitimate nondiscriminatory reason for its decision but there is a question of fact as to the relative qualifications of plaintiff and the comparator, the court may consider adding a special interrogatory on the issue. The Eleventh Circuit stated that “‘a plaintiff cannot prove pretext by simply arguing or even by showing that he was better qualified than the [person] who received the position he coveted. A plaintiff must show not merely that the defendant’s employment decisions were mistaken but that they were in fact motivated by race.’” Springer v. Convergys Customer Management Group, Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (per curiam) (alteration in original) (quoting Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006)). Rather “a plaintiff must show that the disparities between the successful applicant’s and his own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.” Id. (internal quotation marks omitted).

D. Cat’s Paw

In Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), the Supreme Court approved a “cat’s paw” theory of causation in the context of a case under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §4301 et seq. (“USERRA”). In Staub, the plaintiff sought to hold his employer liable for the antimilitary animus of his supervisors, who did not make the ultimate decision to fire the plaintiff but did make unfavorable reports that led to the plaintiff’s termination. The Supreme Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Staub, 131 S. Ct. at 1194 (reversing Seventh Circuit’s grant of judgment as a matter of law for employer because Seventh Circuit incorrectly required decisionmaker to be wholly dependent on advice of supervisors with discriminatory animus; declining to analyze district court’s jury instruction).

At the time of this publication, there have been no Supreme Court or Eleventh Circuit cases that specifically apply Staub beyond the USERRA context. Pattern Instruction 4.9 does not contain a cat’s paw instruction for claims arising under §1981, but if the court decides that the appropriate causation standard for a §1981 claim is “motivating factor” and that a cat’s paw charge is warranted based on the facts in the case, the court may refer to Pattern Instruction 4.5, supra, which includes an optional cat’s paw charge.

E. “Same Decision” Defense

The Eleventh Circuit has held that a complete mixed motive defense is available in actions brought pursuant to 42 U.S.C. §1981. Mabra v. United Food & Commercial Workers Local Union No. 1996, 176 F.3d 1357, 1357-58 (11th Cir. 1999) (citing Harris v. Shelby Cnty. Bd. of Educ., 99 F.3d 1078, 1084-85 & n.5 (11th Cir. 1996). The Eleventh Circuit has not decided whether this issue should be revisited in light of Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) and University of Texas Southwestern Medical Center v. Nassar, No. 12-484, 2013 WL 3155234 (U.S. June 24, 2013). The Committee recommends that district courts review this issue before instructing a jury on §1981.

III. Remedies

A. Damages (general)

Section 1981, like 42 U.S.C. §1983, does not contain its own damages provisions. Rather, the remedies available have been judicially determined. Plaintiffs may recover punitive and compensatory damages (including pain and suffering), back pay, reinstatement or future earnings, and attorney’s fees. See generally, e.g., Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1268 (11th Cir. 2008) (affirming award of back pay, mental anguish damages, punitive damages, attorney’s fees, and costs).

Damages, including punitive damages, are not capped by Title VII’s damages cap. See, e.g., id. at 1284-85 (upholding punitive damages award of $500,000 where analogous Title VII cap was $100,000); Bogle v. McClure, 332 F.3d 1347, 1330, 1362 (11th Cir. 2003) (rejecting argument that Title VII cap should be applied by analogy in cases under 42 U.S.C. §1983 and upholding award of approximately $17 million where analogous Title VII cap was $300,000). A punitive damages award still must comport with due process, and the Supreme Court has instructed the courts to consider several guideposts in evaluating punitive damages awards. E.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003). The Supreme Court has noted that “few [punitive damages] awards exceeding a single-digit ratio between punitive and compensatory damages... will satisfy due process.” Id. at 424.

B. Punitive Damages

A plaintiff cannot recover punitive damages from a government entity under §1981. E.g., Young Apartments, Inc. v. Town of Jupiter, Fla., 529 F.3d 1027, 1047 (11th Cir. 2008) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267 (1981)) (“In a §1983 action, punitive damages are only available from government officials when they are sued in their individual capacities.”). Therefore, if the case involves claims against a government entity only, then the punitive damages instruction should not be given; if the case involves claims against a government entity and government officials sued in their individual capacities, then the instruction and verdict form should be adapted to clarify that the jury may only consider the issue of punitive damages with regard to the individual defendants. Pattern Instruction 4.3, supra, contains a punitive damages instruction that can be used in cases involving individual defendants.

IV. Special Questions

A. Governmental Liability

“[Section] 1983 constitutes the exclusive federal remedy for violation by state actors of the rights guaranteed under §1981.” Bryant v. Jones, 575 F.3d 1281, 1288 n.1 (11th Cir. 2009). Therefore, a plaintiff’s §1981 claims against a government entity must be brought through §1983. Butts v. Cnty. of Volusia, 222 F.3d 891, 892 (11th Cir. 2000). This means that plaintiffs pursuing §1981 claims against a government entity must establish that the deprivation was done pursuant to a policy or custom of the government entity. E.g., Griffin v. City of Opa-Locka, 261 F.3d 1295, 1307 (11th Cir. 2001) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 663 (1978)).

Pattern Instruction 4.9 does not contain instructions on the “policy or custom” issue. In cases where there is a fact dispute as to whether the actions in question were taken pursuant to a policy or custom, the court should refer to Pattern Instruction 4.3, supra, which contains language that is intended to guide the jury through the “policy or custom” issue.

B. Statute of Limitations

The statute of limitations may be different for different types of claims under §1981. See, e.g., Palmer v. Stewart Cnty. Sch. Dist., 178 F. App’x 999, 1003 (11th Cir. 2006) (per curiam) (noting that four-year catch-all statute of limitations applies to §1981 actions arising under the 1991 amendments to §1981 but not to causes of action under §1981 as originally enacted). The jury instruction and verdict form may need to be adapted to address this issue in some cases.

V. When the Case Involves Disparate Treatment Claims Under More than One Statute

(1) the causation standards may differ (especially if the courts decide that Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) applies in the §1981 context), so the instruction and verdict form should take that into account;

(2) statutes of limitations differ, so the instruction and verdict form should take that into account;

(3) the availability of punitive damages differs by statute and type of defendant, so the instruction and verdict form should take that into account.

For more information on the causation issue, please see Annotation IV to Pattern Instruction 4.5, supra.

VI. Additional Information

See Annotations and Comments for Pattern 4.5, supra, some of which may be relevant to a §1981 claim because the analysis of disparate treatment claims under Title VII is similar to the analysis under §1981 “where the facts on which the claims rely are the same.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).

4 PJI 10 | AGE DISCRIMINATION IN EMPLOYMENT ACT - 29 USC §621-634

In this case, [Plaintiff] makes a claim under the federal law that prohibits employers from discriminating against an employee in the terms and conditions of employment because of the employee’s age. The federal law applies to employees who are at least 40 years old.

Specifically, [Plaintiff] claims that [Defendant] [describe adverse employment action] because of [his/her] age.

[Defendant] denies [Plaintiff]’s claim and asserts that [describe the defendant’s defense].

To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Plaintiff] was [Defendant]’s employee;

Second: [Plaintiff] was at least 40 years old at the time of [describe adverse employment action];

Third: [Defendant] [describe adverse employment action]; and

Fourth: [Defendant] took that action because of [Plaintiff]’s age.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

If you find that [Plaintiff] [was [Defendant]’s employee,] was at least 40 years old, and that [Defendant] [describe adverse employment action], you must decide whether [Defendant] took that action because of [Plaintiff]’s age.

To determine that [Defendant] [describe adverse employment action] because of [Plaintiff]’s age, you must decide that [Defendant] would not have [describe adverse employment action] if [Plaintiff] had been younger but everything else had been the same.

[Defendant] denies that [he/she/it] [describe adverse employment action] because of [Plaintiff]’s age and claims that it made the decision for [other reasons/another reason].

An employer may not discriminate against an employee because of age, 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 to [describe adverse employment action], and you find that [Defendant]’s decision was not because of [Plaintiff]’s age, 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 age. I have explained to you that evidence can be direct or circumstantial. To decide whether [Defendant]’s decision [describe adverse employment action] was because of [Plaintiff]’s age, you may consider the circumstances of [Defendant]’s decision. For example, you may consider whether you believe the reason[s] [Defendant] gave for the decision. If you do not believe the reason[s] [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 discriminatory reasons for the decision.]

[Including BFOQ affirmative defense: If you find by a preponderance of the evidence that [Defendant] [describe adverse employment action] because of [Plaintiff]’s age, you must decide whether [Defendant] has established [his/her/its] affirmative defense.

To establish its affirmative defense, [Defendant] must prove by a preponderance of the evidence that [he/she/it] [describe adverse employment action] because age is a “bona-fide occupational qualification.” It is not unlawful for an employer to [describe adverse employment action] an employee based on a bona-fide occupational qualification.

To establish that age is a “bona-fide occupational qualification,” [Defendant] must prove both of the following elements by a preponderance of the evidence:

First: The age qualification is reasonably necessary for [Plaintiff] to successfully perform [his/her] job; and

Second: [Defendant] had reasonable cause to believe that all, or substantially all, persons over the age qualification would be unable to perform the job safely and efficiently.

If you find that [Defendant] has proved that age is a bona-fide occupational qualification, you must decide whether [Defendant] has proved by a preponderance of the evidence that [he/she/it] [describe adverse employment action] because of the bona-fide occupational qualification.

If you find that [Defendant] [describe adverse employment action] because of the bona-fide occupational qualification, you have found that [he/she/it] established [his/her/its] affirmative defense, and you will not decide the issue of [Plaintiff]’s damages. But if you find that [Defendant] has not established [his/her/its] affirmative defense, you must decide the damages issue.]

[Including seniority system affirmative defense: If you find by a preponderance of the evidence that [Defendant] [describe adverse employment action] because of [Plaintiff]’s age, you must decide whether [Defendant] has established [his/her/its] affirmative defense. An affirmative defense allows a party to limit [his/her/its] liability.

To establish [his/her/its] affirmative defense, [Defendant] must prove by a preponderance of the evidence that [he/she/it] [describe adverse employment action] because [he/she/it] was applying the terms of a bona-fide seniority system. It is not unlawful for an employer to [describe adverse employment action] based on a bona-fide seniority system.

To establish that [he/she/it] was applying the terms of a bona-fide seniority system, [Defendant] must prove both of the following elements by a preponderance of the evidence:

First: [Defendant]’s seniority system used the employees’ length of service – not the employees’ age – as the primary basis for giving available job opportunities to [his/her/its] employees; and

Second: [Defendant]’s decision to [describe adverse employment action] was consistent with its seniority system.

If you find that [Defendant] established both these elements by a preponderance of the evidence, you have found that [he/she/it] established [his/her/its] affirmative defense, and you will not decide the issue of [Plaintiff] compensatory damages. But if you find that [Defendant] has not established [his/her/its] affirmative defense, you must decide the damages issue.]

[Without Affirmative Defense: If you find in [Plaintiff]’s favor for each fact [he/she] must prove, you must consider [Plaintiff]’s 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 [describe 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.

You should consider the following element of damage, to the extent you find that [Plaintiff] has proved it by a preponderance of the evidence, and no others: net lost wages and benefits from the date of [describe adverse 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 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:

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

ANNOTATIONS AND COMMENTS

I. Cause of Action

The Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. (“ADEA”), prohibits employment discrimination on the basis of age. Pattern Instruction 4.10 is meant to be used for ADEA disparate treatment claims based on any adverse employment action, including but not limited to failure to hire, failure to promote, discharge, reduction in force, and elimination of position.

Pattern Instruction 4.10 is not intended to be used for ADEA retaliation claims. Pattern Instruction 4.22, infra, may be adapted to address such claims. An instruction on ADEA retaliation should incorporate the damages instructions of Pattern Instruction 4.10.

The Eleventh Circuit has assumed without deciding that the ADEA provides a cause of action for hostile work environment. See E.E.O.C. v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1249 & n.7 (11th Cir. 1997). Pattern Instruction 4.10 is not intended to be used for hostile work environment claims that do not involve a tangible employment action; Pattern Instructions 4.6 and 4.7, supra, may be adapted to address claims for an age-based hostile work environment.

II. Elements and Defenses

A. “Employee”

To prevail on an ADEA claim (other than a failure-to-hire claim), the plaintiff must prove that he was an employee of the defendant. In a failure-to-hire case, the pattern charge and interrogatories should be modified so that the jury does not have to find that the plaintiff was an employee of the defendant. If there is a dispute about whether the plaintiff was an employee of the defendant, this issue should be determined as a threshold matter and should be inserted as the first fact to be considered by the jury. For example, the ADEA does not provide a cause of action for discrimination against an independent contractor. Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495 n.13 (11th Cir. 1993). If there is a genuine fact dispute regarding the plaintiff’s status as an employee or independent contractor, that issue should be determined by the jury. See Garcia v. Copenhaver, Bell & Assocs., M.D.’s, 104 F.3d 1256, 1266-67 (11th Cir. 1997). Please refer to Pattern Instruction 4.24, infra, for a pattern instruction regarding the independent contractor-employee distinction. Pattern Instruction 4.25, infra, addresses the “joint employer” issue, and Pattern Instructions 4.26 and 4.27, infra, address situations where one company may be considered the alter ego of an individual or corporation.

B. Causation

The ADEA prohibits discrimination “because of [an] individual’s age,” 29 U.S.C. §623(a)(1), and the prohibition is “limited to individuals who are at least 40 years of age,” id. §631(a).

In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that a plaintiff asserting an ADEA disparate treatment claim must prove that his or her age was the but-for cause, not simply a motivating factor, of the adverse employment action and that the burden of persuasion does not shift to the employer to show that it would have taken the same action regardless of the plaintiff’s age. Id. at 174-78. As a result, the “same decision” defense (also known as the “mixed motive” defense) is no longer viable in ADEA cases. See Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1203-04 (11th Cir. 2010) (per curiam). Pattern Instruction 4.10 incorporates this causation standard and does not contain a mixed motive instruction.

Pattern Instruction 4.10 includes in brackets an optional charge discussing the inference of pretext. The basis for this charge is explained in further detail in the annotations following Pattern Instruction 4.5, supra. See also Mitchell v. City of Lafayette, 504 Fed. App’x 867, 869-70 (11th Cir. 2013) (per curiam) (explaining that, even after Gross, ADEA claims are analyzed under the McDonnell Douglas framework); Sims v. MVM, Inc., 704 F.3d 1327, 1333-34 (11th Cir. 2013) (evaluating pretext in ADEA context).

Pattern Instruction 4.10 does not contain an optional cat’s paw charge based on Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). The Supreme Court in Staub applied the cat’s paw theory to a claim under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. §4301, et seq., which requires proof that protected military status “is a motivating factor in the employer’s action.” Staub, 131 S. Ct. at 1190-91 (quoting 38 U.S.C. §4311(a)). A cat’s paw charge may be given in an appropriate case, and the cat’s paw instruction in Pattern Instruction 4.5, supra, may be used as a starting point, though the court should modify it because of the differences in causation standards between Title VII/USERRA (“motivating factor”) and the ADEA (“but for”). A stricter causation standard applies to cat’s paw claims under a “but for” statute like the ADEA. Sims v. MVM, Inc., 704 F.3d 1327, 1335-37 (11th Cir. 2013) (evaluating cat’s paw argument in ADEA context and finding that a different standard applies to claims under the ADEA).

III. Remedies

Pattern Instruction 4.10 contains an instruction on willful violations, which is to be used in cases where the plaintiff alleges a willful violation of the ADEA. The willful damages instruction is adapted from Formby v. Farmers and Merchants Bank, 904 F.2d 627, 632 (11th Cir. 1990) (per curiam). If the jury finds that the defendant acted willfully, then the court should award as damages the amount calculated by the jury plus an equal amount as liquidated damages. 29 U.S.C. §626(b); accord Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1340 (11th Cir. 1999).

Front pay should not be included in liquidated damages awards because “while liquidated damages are intended to be punitive in nature, the express terms of the ADEA limit the calculation of liquidated damages to double the amount of lost pecuniary wages. Front pay, however, is equitable rather than compensatory relief.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1340 (11th Cir. 1999) (internal citations omitted). Therefore, liquidated damages are limited to double the amount of full back pay and lost fringe benefits. Id.

A court may award both prejudgment interest and liquidated damages in an ADEA case because the legislative history of the ADEA indicates that Congress intended for liquidated damages to be punitive in nature. See Lindsey v. Am. Cast Iron Pipe Co., 810 F.2d 1094, 1102 (11th Cir. 1987) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125 (1985)). “ADEA liquidated damages awards punish and deter violators, while FLSA liquidated damages merely compensate for damages that would be difficult to calculate.” Id.

“[N]either punitive damages nor compensatory damages for pain and suffering are recoverable under the ADEA.” Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1446 (11th Cir. 1985).

IV. Disparate Impact Claims

The ADEA provides a right to jury trial for all claims covered by the Act, including disparate impact claims. 29 U.S.C. §626(c)(2). In Smith v. City of Jackson, Miss., 544 U.S. 228, 240 (2005), the Supreme Court held that the ADEA authorizes recovery on disparate impact claims in accordance with Griggs v. Duke Power Co., 401 U.S. 424 (1971), which announced a disparate impact theory of recovery in Title VII cases. Pattern Instruction 4.10 does not include a disparate impact charge.

Should the court need to craft a disparate impact instruction, the following points may be useful. The disparate impact ground of recovery is narrower in the ADEA context than in the Title VII context. First, the ADEA permits a disparate impact claim “where the differentiation is based on reasonable factors other than age.” 29 U.S.C. §623(f)(1). Second, the 1991 amendment to Title VII modified the Supreme Court’s holding in Ward’s Cove Packing v. Atonio, 490 U.S. 642 (1989), in which the Court narrowly construed the employer’s exposure to disparate-impact liability under Title VII. Because the 1991 amendment to Title VII did not affect the ADEA, it follows that the standards of Ward’s Cove remain applicable to disparate impact actions under the ADEA. Smith, 544 U.S. at 240. Under Ward’s Cove, “it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Smith, 544 U.S. at 241 (emphasis omitted) (internal quotation marks omitted).

In an ADEA disparate-impact case, the employer may assert the affirmative defense that its employment decision was made on the basis of reasonable factors other than age, and the employer bears the burdens of production and persuasion on this defense. Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 93-95 (2008).

V. Miscellaneous Issues

Trial by jury is available in ADEA disparate treatment cases. Lorilard v. Pons, 434 U.S. 575, 585 (1978).

The ADEA does not abrogate the states’ sovereign immunity. Kimel v. Fla. Bd. Of Regents, 528 U.S. 62, 92 (2000).

A court may award attorney’s fees to a prevailing ADEA defendant only upon finding that the plaintiff litigated in bad faith. Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1437 (11th Cir. 1998).

4 PJI 11 | AMERICANS WITH DISABILITIES ACT - DISPARATE TREATMENT CLAIM - 42 USC §12101-12117

In this case, [Plaintiff] claims that [Defendant] discriminated against [Plaintiff] by [refusing to hire [him/her]/terminating [his/her] employment/failing to promote [him/her]] because [he/she] had a “disability” within the meaning of the Americans with Disabilities Act (the ADA).

[Defendant] denies [Plaintiff]’s claim and asserts that [describe the defendant’s defense].

Under the ADA, if a person is qualified to do the job, it is unlawful for an employer to [refuse to employ/discharge/fail to promote] the person because of that person’s disability.

To succeed on [his/her] claim, [Plaintiff] must prove all the following facts by a preponderance of the evidence:

First: [Plaintiff] had a disability;

Second: [Plaintiff] was a qualified individual;

Third: [Defendant] [refused to employ/discharged/failed to promote] [Plaintiff]; and

Fourth: [Defendant] took that action because of [Plaintiff]’s disability.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

Definition of “Disability”

The first element requires that [Plaintiff] prove by a preponderance of the evidence that [he/she] had a disability. A “disability” is a physical or mental impairment that substantially limits one or more major life activities.

A “physical impairment” is a condition that prevents the body from functioning normally. A “mental impairment” is a condition that prevents the mind from functioning normally.

A “major life activity” is an activity that is centrally important to everyday life, including the operation of major bodily functions.

[[Activity at issue] is a major life activity.]

[[Plaintiff] claims that [activity at issue] is a major life activity, and you must decide whether it is. Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities also include functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.]

An impairment “substantially limits” a major life activity if it prevents or significantly restricts a person from performing the activity, compared to an average person in the general population. An impairment that substantially limits one major life activity is a disability even if it does not limit any other major life activity.

To decide whether [Plaintiff]’s [describe impairment] substantially limits [his/her] ability to [activity at issue], you should consider, as compared to most people in the general population:

(a) the condition under which [Plaintiff] performs [activity at issue];

(b) the manner in which [Plaintiff] performs [activity at issue]; and

(c) how long [it takes [Plaintiff] to/[Plaintiff] can] perform [activity at issue].

[Mitigating measures: To decide whether [Plaintiff]’s [describe impairment] substantially limits [his/her] ability to [activity at issue], it does not matter that [his/her] [describe impairment] can be corrected by the use of [medication/hearing aids/prosthetics/assistive technology/describe other mitigating measure]. [But you can consider whether [Plaintiff]’s eyesight could be corrected by the use of ordinary eyeglasses or contact lenses.]

[Episodic impairment: If [Plaintiff]’s impairment is not always a problem but flares up from time to time, that can be a disability if it would substantially limit a major life activity when active.]

[When there is a jury question on “record of” disability: [Plaintiff] also can establish that [he/she] had a disability by proving that [he/she] had a record of a disability. [Plaintiff] had a record of a disability if [he/she] had a history of, or had been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. Put another way, if [Plaintiff] had a disability but [has now recovered/the disability is in remission], [he/she] is still considered to have a disability within the meaning of the ADA.]

[When there is a jury question on “regarded as”: [Plaintiff] can also establish that [he/she] had a disability by proving that [Defendant] regarded [him/her] as having a disability. [Plaintiff] is “regarded as” having a disability if [he/she] proves that [Defendant] [describe adverse employment action] [him/her] because of an actual or perceived impairment – even if the actual or perceived impairment did not limit a major life activity and even if [Defendant] did not think that the actual or perceived impairment limited a major life activity. [But [Plaintiff] cannot be “regarded as” disabled if [his/her] impairment is transitory and minor. A “transitory” impairment is one that’s expected to last six months or less.]]

Definition of “Qualified Individual”

The second element requires that [Plaintiff] prove by a preponderance of the evidence that [he/she] was “qualified” for the job at the time of the challenged employment decision. This means that [Plaintiff] must show that [he/she] had the skill, experience, education, and other job-related requirements for [describe job], and could do the essential functions of the job – with or without reasonable accommodation.

In this case, [Plaintiff] claims that [he/she] was able to perform the essential functions of [describe job] [with [describe accommodation provided]]. [Defendant] claims that [Plaintiff] was unable to perform [describe functions] [– even with [describe accommodation provided] –] and that [this function/these functions] [was/were] essential to [describe job]. To the extent that [Plaintiff] claims that a particular function is not essential to the job, [he/she] must prove that the function is not essential.

The essential functions of a position are the fundamental duties of that position. The term “essential functions” does not include the position’s marginal functions. To decide whether a function is essential to a particular position, you may consider the following factors:

(a) whether the function’s performance is the reason the position exists;

(b) whether there are a limited number of employees available to perform the function;

(c) whether the function is highly specialized so that an employee in the position is hired for the ability to perform the function;

(d) [Defendant]’s judgment about which functions are essential to the position;

(e) written job descriptions for the position;

(f) the amount of time an employee in the position spends performing the function;

(g) the consequences of not requiring an employee in the position to perform the function;

(h) [the terms of a collective-bargaining agreement]; or

(i) whether others who held the position were required to perform the function.

No single factor controls your decision. You should consider all the evidence to decide whether a function is essential to the job. [To decide whether [Plaintiff] was qualified to perform the essential job functions, you should consider [his/her] abilities as they existed when [Defendant] [describe adverse employment action].

Direct Threat: [Name of Defendant] contends that [Plaintiff] is not a “qualified individual” because [Plaintiff]’s [employment/continued employment] [posed/would have posed] a direct threat to [Plaintiff] [and/or] to [Defendant]’s other employees. A “direct threat” is a significant risk to the health or safety of [Plaintiff] or others that cannot be eliminated by a reasonable accommodation. Therefore, you must decide whether [Plaintiff] could safely perform the essential functions of [his/her] job with or without a reasonable accommodation. In determining whether [Plaintiff] [posed/would have posed] a direct threat, you may consider:

(a) the nature of the risk of [plaintiff’s condition];

(b) the severity of the risk of [plaintiff’s condition];

(c) the duration of the risk of [plaintiff’s condition];

(d) how likely it is that harm will occur due to [plaintiff’s condition]; and

(e) whether the potential harm due to [plaintiff’s condition] is likely to occur in the near future.

Definition of “Because of Plaintiff’s Disability”

Finally, if you find that [Plaintiff] had a “disability,” was a “qualified individual,” and that [Defendant] [describe adverse employment action], you must decide whether [Defendant] took that action “because of” [Plaintiff]’s disability. Put another way, you must decide whether [Plaintiff]’s disability was the main reason for [Defendant]’s decision.

To determine that [Defendant] [describe adverse employment action] because of [Plaintiff]’s disability, you must decide that [Defendant] would not have [describe adverse employment action] if [Plaintiff] had not had a disability but everything else had been the same.

[Defendant] denies that [he/she/it] [describe adverse employment action] because of [Plaintiff]’s disability and claims that [he/she/it] made the decision for [another reason, other reasons].

An employer may not discriminate against an employee because of the employee’s disability, 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 because of [Plaintiff]’s disability, 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 disability. I have explained to you that evidence can be direct or circumstantial. To decide whether [Defendant]’s decision [describe adverse employment action] was because of [Plaintiff]’s disability, you may consider the circumstances of [Defendant]’s decision. For example, you may consider whether you believe the reason[s] [Defendant] gave for the decision. If you do not believe the reason[s] [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 discriminatory reason for the decision.]

If you find that [Plaintiff] has proved each of the elements [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 [describe 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.

You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:

(a) net lost wages and benefits from the date of the [describe adverse employment action] to the date of your verdict; and

(b) emotional pain and mental anguish.

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

If, however, [Defendant] shows that [Plaintiff] did not make reasonable efforts to obtain any work, then [Defendant] does not have to prove that comparable work was available.

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.]

[Punitive Damages: [Plaintiff] also asks you to award punitive damages. The purpose of punitive damages is not to compensate [Plaintiff] but, instead, to punish [Defendant] for wrongful conduct and to deter similar wrongful conduct. You will only reach the issue of punitive damages if you find for [Plaintiff] and award [him] [her] compensatory damages.

To be entitled to an award of punitive damages [Plaintiff] must prove by a preponderance of the evidence that [Defendant] acted with either malice or with reckless indifference toward [Plaintiff]’s federally protected rights. Specifically, [Plaintiff] must show that an employee of [Defendant], acting in a managerial capacity, either acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights.

There is no bright-line rule about which employees act in a managerial capacity. You must determine whether an employee acted in a “managerial capacity” based upon the type of authority [Defendant] gave the employee and the amount of discretion that the employee has in what is done and how it is accomplished.

To show that [Defendant] acted with malice, [Plaintiff] must show that an employee acting in a managerial capacity knew that federal law prohibits discrimination and discriminated against [Plaintiff] anyway. To show that [Defendant] acted with reckless indifference to [Plaintiff]’s federally protected rights, [Plaintiff] must show that an employee acting in a managerial capacity acted with serious disregard for whether the conduct violated federal law. Either malice or reckless indifference is sufficient to entitle [Plaintiff] to an award of punitive damages; [Plaintiff] need not prove both.

An employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where the managerial employees’ acts are contrary to the employer’s good faith efforts to comply with the law by implementing policies and programs designed to prevent unlawful discrimination in the workplace. However, the mere existence of policies prohibiting discrimination does not preclude punitive damages if the policies are ineffective.

There is no single factor that determines whether [Defendant] acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights. In determining whether to award punitive damages, you may consider factors such as:

If you find that punitive damages should be assessed against [Defendant], you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages.]

ANNOTATIONS AND COMMENTS

I. Cause of Action

The Americans with Disabilities Act, 42 U.S.C. §12101 et seq. (“ADA”), prohibits employment discrimination on the basis of a disability. Pattern Instruction 4.11 is meant to be used for an ADA discrimination claim based on any adverse employment action, such as failure to hire, failure to promote, discharge, reduction in force, and elimination of position. This Pattern Instruction is to be used for claims arising under the ADA Amendments Act of 2008 (“ADA(A)A”), Pub. L. No 110-325, 122 Stat. 3553 (2008), which became effective on January 1, 2009. At the time of this publication, the Eleventh Circuit had not squarely addressed the question whether the ADA(A)A applies retroactively, but it has suggested that it does not. Tarmas v. Sec’y of Navy, 433 F. App’x 754, 762 n.9 (11th Cir. 2011) (per curiam) (noting that Eleventh Circuit has never held that the ADA(A)A is retroactively applicable and that other circuits have concluded that the ADA(A)A is not retroactively applicable). Accordingly, in the absence of an Eleventh Circuit decision holding that the ADA(A)A is retroactively applicable, the ADA as it existed prior to the ADA(A)A applies to claims based on conduct that occurred before January 1, 2009, and the court should use 2005 Pattern Instruction 4.11 for such claims.

Pattern Instruction 4.11 is not intended to be used for ADA retaliation claims. Pattern Instruction 4.22, infra, may be adapted to address such claims. An instruction on ADA retaliation should incorporate the damages instructions of Pattern Instruction 4.11.

At the time of this publication, the Eleventh Circuit had not decided whether the ADA provides a cause of action for hostile work environment, though other circuits have recognized such a claim. E.g., Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 234-35 (5th Cir. 2001). Pattern Instruction 4.11 is not intended to be used for hostile work environment claims that do not involve a tangible employment action; Pattern Instructions 4.6 and 4.7, infra, may be adapted to address claims for a disability-based hostile work environment.

II. Disability Element

To state a claim under the ADA, a plaintiff must prove that the plaintiff has a disability, which is a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. 42 U.S.C. §12102(1). Pattern Instruction 4.11 is intended to guide the jury through the elements of a “disability.”

A. “Major Life Activity”

A non-exhaustive list of “major life activities” is codified at 42 U.S.C. §12102(2). In some cases, it is undisputed that the activity at issue is a “major life activity,” and in such cases the jury should be instructed accordingly. Where the jury is to decide whether a major life activity is limited by a physical or mental impairment, the bracketed charge defining “major life activity” should be used.

B. Mitigating Measures

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures except for “ordinary eyeglasses or contact lenses.” 42 U.S.C. §12102(4)(E)(i)-(ii). Examples of mitigating measures which may not be considered are set forth in 42 U.S.C. §12102(4)(E)(i) and 29 C.F.R. §1630.2(j)(5). In most cases, this issue will be decided as a matter of law and will not need to be submitted to the jury. Therefore, the pattern instruction does not include a “mitigating measures” charge. In the rare cases where there is a fact question on this issue, the court should include a mitigating measures instruction that is tailored to the alleged disability and mitigating measures at issue.

C. Episodic Impairment

Under the ADA(A)A, “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. §12102(4)(D). The bracketed instruction defining episodic impairment should be provided to the jury where the parties dispute the existence of an episodic impairment.

D. “Record of” Disability and “Regarded As” Disabled

Pattern Instruction 4.11 contains bracketed instructions to be used when there is a jury question on whether the plaintiff had a “record of” a disability or was “regarded as” disabled. These charges are based on the statutory language of the ADA(A)A, including the new rule that a plaintiff cannot be “regarded as” disabled based on a “transitory and minor” impairment, meaning a minor impairment “with an actual or expected duration of 6 months or less.” 42 U.S.C. §12102(3)(B).

III. “Qualified Individual” – Direct Threat

An individual is not a “qualified individual” if, by performing the duties of a given position, he would pose a “direct threat” to himself or others. Pinckney v. Potter, 186 F. App’x 919, 925 (11th Cir. 2006) (per curiam). A “direct threat” is “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. §12111(3). “The employee retains at all times the burden of persuading the jury either that he was not a direct threat or that reasonable accommodations were available.” Moses v. Am. Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996) (per curiam). The “Definition of ‘Qualified Individual’” section contains an optional “direct threat” instruction that should be used if there is a fact question on this issue. If there is a fact question as to whether the risk could have been eliminated by a reasonable accommodation, the court should tailor the “reasonable accommodation” portion Pattern Instruction 4.12, infra, to address this issue.

A “direct threat” may include an infectious disease. In Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275 (11th Cir. 2001), the Eleventh Circuit held that where a person poses a significant risk of communicating an infectious disease to others in the workplace and where a reasonable accommodation will not eliminate that risk, the person will not be otherwise qualified for his or her job and thus is not a “qualified individual” under the ADA. Id. at 1280. To determine whether a person who carries an infectious disease poses a significant risk to others, the Eleventh Circuit noted that the following evidence should be considered:

[findings of] facts, based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk, (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.

Id. (alteration in original) (quoting Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 288 (1987)).

There is a circuit split on the issue of who has the burden on the “direct threat” issue. In some circuits, “direct threat” is an affirmative defense, so the employer has the burden to establish that the plaintiff was a direct threat. Wurzel v. Whirlpool Corp., 482 F. App’x 1, 9 n.14 (6th Cir. 2012) (discussing different approaches to burden of proof in direct threat cases). In the Eleventh Circuit, however, “[t]he employee retains at all times the burden of persuading the jury either that he was not a direct threat or that reasonable accommodations were available.” Moses v. Am. Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996) (per curiam).

IV. Causation Element

The ADA prohibits discrimination “on the basis of” or “because of” disability. 42 U.S.C. §12112. It also prohibits retaliation “because” an employee has opposed a practice made unlawful by the ADA. 42 U.S.C. §12203. The causation language is the same as the causation language in the Age Discrimination in Employment Act, which prohibits discrimination “because of” age, 29 U.S.C. §623(a), and retaliation “because” an employee has opposed an employment practice made unlawful by the ADEA, 29 U.S.C. §623(d).

In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that, based on the statutory language of the ADEA, a plaintiff must prove that “age was the ‘but-for’ cause of the employer’s adverse decision,” not merely a motivating factor in the decision. Gross, 557 U.S. at 176-77. The Court also rejected the mixed motive defense (also known as the same decision defense) in the context of the ADEA, noting that unlike under Title VII, a mixed motive defense was not incorporated into the ADEA. Id. at 173-75. In University of Texas Southwestern Medical Center v. Nassar, No. 12-484, 2013 WL 3155234 (U.S. June 24, 2013), Nassar, the Supreme Court extended the rationale of Gross to Title VII retaliation claims “[g]iven the lack of any meaningful textual difference between the text in” Title VII’s anti-retaliation provision and the ADEA’s anti-retaliation provision. Nassar, 2013 WL 3155234, at *10. Therefore, “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in [42 U.S.C.] §2000e-2(m).” Id. at *14. Although the Eleventh Circuit has not, at the time of this publication, issued an opinion on this matter, the Committee believes that the rationale of Gross and Nassar may extend to the ADA because the statutory causation language is the same in the ADA and the ADEA. Accordingly, Pattern Instruction 4.11 instructs that the adverse employment action must be “because of” the plaintiff’s disability.

The model instruction includes in brackets an optional charge discussing the inference of pretext. The basis for this charge is explained in further detail in the annotations following Pattern Instruction 4.5, supra.

V. Remedies

A plaintiff prevailing on an ADA discrimination claim may recover back pay, other past and future pecuniary losses, damages for pain and suffering, punitive damages, and reinstatement or front pay. 42 U.S.C. §12117(a) (stating that the remedies and enforcement procedures available in Title VII of the Civil Rights Act of 1964 – including 42 U.S.C. §§2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 – apply to actions for disability discrimination under the ADA). For annotations and comments regarding Title VII remedies, please see the annotations and comments following Pattern Instruction 4.5, supra.

A prevailing ADA plaintiff may also recover compensatory (emotional pain and suffering) and punitive damages (exclusive of back pay and interest on back pay) pursuant to 42 U.S.C. §1981a(a)(2). The statutory caps on total damages provided in 42 U.S.C. §1981a(b)(3) apply to ADA employment discrimination actions. A further limitation on the recovery of punitive damages is that few awards exceeding a single-digit ratio between punitive and compensatory damages satisfy due process. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).

Either party may demand trial by jury when the complainant seeks compensatory or punitive damages. 42 U.S.C. §1981a(c).

The court may award a reasonable attorney’s fee, litigation expenses, and costs to the prevailing party. 42 U.S.C. §12205. This is a question for the court, not a jury.

4 PJI 12 | AMERICANS WITH DISABILITIES ACT - REASONABLE ACCOMMODATION CLAIM - 42 USC §12101-12117

In this case, [Plaintiff] claims that [Defendant] discriminated against [Plaintiff] because of [his/her] disability by failing to provide a reasonable accommodation for [his/her] disability within the meaning of the Americans with Disabilities Act (the ADA).

[Defendant] denies [Plaintiff]’s claim and asserts that [describe the defendant’s defense].

Under the ADA, if an employer knows that an employee has a disability and needs [a] reasonable accommodation[s] to perform the essential functions of [his/her] job, the employer must provide [a] reasonable accommodation[s].

To succeed on [his/her] claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Plaintiff] had a disability;

Second: [Plaintiff] was a qualified individual;

Third: [Defendant] knew of [Plaintiff]’s disability;

Fourth: [Plaintiff] requested an accommodation;

Fifth: A reasonable accommodation existed that would have allowed [Plaintiff] to perform the essential functions of the job; and

Sixth: [Defendant] failed to provide a reasonable accommodation.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

Definition of “Disability”

Definition of “Qualified Individual”

The second element requires that [Plaintiff] prove by a preponderance of the evidence that [he/she] was “qualified” for the job when [Defendant] [describe adverse employment action]. This means that [Plaintiff] must show that [he/she] had the skill, experience, education, and other job-related requirements for [describe job], and could do the essential functions of the job – with or without reasonable accommodation.

The essential functions of a position are the fundamental duties of that position. The term “essential functions” does not include the position’s marginal functions. To decide whether a function is essential to a particular position, you may consider the following factors:

(a) whether the function’s performance is the reason the position exists;

(b) whether there are a limited number of employees available to perform the function;

(c) whether the function is highly specialized so that an employee in the position is hired for the ability to perform the function;

(d) [Defendant]’s judgment about which functions are essential to the position;

(e) written job descriptions for the position;

(f) the amount of time an employee in the position spends performing the function;

(g) the consequences of not requiring an employee in the position to perform the function;

(h) [the terms of a collective-bargaining agreement;] or

(i) whether others who held the position were required to perform the function.

No single factor controls your decision. You should consider all the evidence to decide whether a function is essential to the job. [To decide whether [Plaintiff] was qualified to perform the essential job functions, you should consider [his/her] abilities as they existed when [Defendant] [describe adverse employment action].

Direct Threat: [Defendant] contends that [Plaintiff] is not a “qualified individual” because [Plaintiff]’s [employment/continued employment] [posed/would have posed] a direct threat to [Plaintiff] [and/or] to [Defendant]’s other employees. A “direct threat” is a significant risk to the health or safety of [Plaintiff] or others that cannot be eliminated by a reasonable accommodation. Therefore, you must decide whether [Plaintiff] could safely perform the essential functions of [his/her] job with or without a reasonable accommodation. In determining whether [Plaintiff] [posed/would have posed] a direct threat, you may consider:

[Plaintiff] has the burden to prove that [he/she] [did not pose/would not have posed] a direct threat to [himself/herself] [and/or] to [Defendant]’s other employees. If you find that [Plaintiff] could not safely perform the essential functions of [his/her] job with or without a reasonable accommodation, then [Plaintiff] is not a “qualified individual.”]

For the third element, [Plaintiff] must prove by a preponderance of the evidence that [Defendant] knew about [his/her] disability.

For the fourth element, [Plaintiff] must prove by a preponderance of the evidence that [he/she] requested an accommodation.

Put another way, the third and fourth elements require [Plaintiff] to prove that [he/she] informed [Defendant] of both the substantial limitations [his/her] disability created and the need for an accommodation.

For the fifth element, [Plaintiff] must prove by a preponderance of the evidence that a reasonable accommodation existed that would have allowed [him/her] to perform the essential functions of the job.

For the sixth element, [Plaintiff] must prove by a preponderance of the evidence that [Defendant] failed to provide a reasonable accommodation.

In this case, [Plaintiff] claims that [he/she] would have been able to perform the essential functions of [describe job] with a reasonable accommodation. [Defendant] claims that [[Plaintiff] was unable to perform the essential job functions – even with a reasonable accommodation/[Defendant] offered [Plaintiff] a reasonable accommodation, and [he/she] refused it/the accommodation [Plaintiff] requested would have imposed an undue hardship on [Defendant]].

A “reasonable accommodation” is a modification or adjustment of the employer’s ordinary work rules, facilities, or terms and conditions of employment that the employer can make without causing an undue hardship.

A reasonable accommodation may include:

(a) making existing facilities readily accessible to, and usable for, [Plaintiff];

(b) job restructuring;

(c) part-time or modified work schedules;

(d) reassignment to a vacant position;

(e) acquiring or modifying equipment or devices;

(f) adjusting or modifying examinations, training materials, or policies;

(g) providing qualified readers or interpreters; or

(h) other similar accommodations for individuals with disabilities.

[In this case, [Plaintiff] claims that [Defendant] should have accommodated [Plaintiff] by reassigning [him/her] to another position. Reassignment may be a reasonable accommodation under certain circumstances – but an employer is not required to create or reestablish a job where one would not otherwise exist. Also, an employer is not required to promote an employee with a disability as an accommodation. To show that reassignment to another job would have been a reasonable accommodation, [Plaintiff] must prove that the job was vacant or available and that [he/she] was qualified for it.]

[In this case, [Plaintiff] claims that [Defendant] should have accommodated [Plaintiff] by requiring another employee to perform certain duties of [his/her] job that [Plaintiff] could not perform because of [his/her] disability. Reallocation of marginal job duties can be a reasonable accommodation – but an employer does not have to transfer any essential job duties to another employee. If the duties [Plaintiff] wanted [Defendant] to reallocate were essential functions of [Plaintiff]’s job, then that is not a reasonable accommodation. If [Plaintiff] wanted [Defendant] to reallocate only marginal job duties to another employee, then that reallocation may be a reasonable accommodation – but only if the reallocation would not impose an excessive burden on the employer or the other employee.]

[In this case, [Plaintiff] claims that [Defendant] should have accommodated [Plaintiff] by modifying [his/her] work schedule. Modification of a work schedule can be a reasonable accommodation – but only if [Plaintiff] shows that the modified work schedule would have enabled [him/her] to perform the essential job functions and shows that it would have been reasonable under the circumstances. An employer’s duty to provide a reasonable accommodation to a disabled employee does not require the employer to burden other employees excessively.]

[In this case, [Plaintiff] claims that [Defendant] should have [explain suggested reasonable accommodation].]

To decide whether [Defendant] denied [Plaintiff] a reasonable accommodation, you should keep in mind that while an employer is required to provide [a] reasonable accommodation[s] that would allow [Plaintiff] to perform the essential job functions, the employer is not required to provide the particular accommodation that [Plaintiff] prefers or requests. There may be more than one reasonable accommodation available under the circumstances, and if [Plaintiff] refused to accept an accommodation offered by [Defendant] that would have allowed [him/her] to perform the essential job functions, [Plaintiff] has not proved that [Defendant] failed to provide a reasonable accommodation.

[Also, just because [Defendant] may have offered a certain accommodation to [Plaintiff] or another employee in the past does not mean that [Defendant] must forever extend the same accommodation to [Plaintiff] or that the accommodation is necessarily reasonable under the ADA. Otherwise, an employer would be reluctant to offer benefits or concessions to disabled employees for fear that by providing the benefit or concession one time, the employer would be required to provide that accommodation in the future. Because [Plaintiff] has requested an accommodation that [Defendant] has provided to [Plaintiff] or another employee in the past does not necessarily mean that the particular accommodation is a reasonable one. Instead, you must determine its reasonableness under all the evidence.]

[Good Faith Defense: If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide whether [Defendant] has established [his/her/its] affirmative defense.

[Defendant] claims that after [Plaintiff] informed [Defendant] of [his/her] disability and requested an accommodation, [Defendant] made good faith efforts to consult with [Plaintiff] in order to identify and make a reasonable accommodation [that would not cause an undue hardship on the operation of [Defendant]’s business].

[Defendant] must prove by a preponderance of the evidence that [he/she/it] made good faith efforts to identify and make a reasonable accommodation for [Plaintiff].

If you find by a preponderance of the evidence that [Defendant] made good faith efforts to identify and make a reasonable accommodation for [Plaintiff], then you have found that [Defendant] established its affirmative defense, and you will not decide the issue of [Plaintiff]’s damages. But if you find that [Defendant] has not established [his/her/its] affirmative defense, you must decide the damages issue.]

[Undue-Hardship Defense: If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide whether [Defendant] has established [his/her/its] affirmative defense.

[Defendant] claims that the accommodation that [Plaintiff] requested would have imposed an undue hardship on the operation of [his/her/its] business. Under the ADA, [Defendant] is not required to accommodate [Plaintiff] if the accommodation would cause an undue hardship to its business. An accommodation would cause an “undue hardship” if it would cause [Defendant] significant difficulty or expense.

[Defendant] must prove by a preponderance of the evidence that the accommodation [Plaintiff] requested would be an undue hardship.

To decide this issue, you should consider the following factors:

(a) the nature and cost of the accommodation;

(b) [Defendant]’s overall financial resources, including the size of [Defendant]’s business, the number of employees, and the type of facilities [Defendant] operates;

(c) the financial resources of the facility where the accommodation would be made, including the number of employees at that facility and the accommodation’s impact on the facility’s operations and costs; and

(d) the way that [Defendant] conducts the business’s operations, including [Defendant]’s workforce structure, the location of the facility where the accommodation would be made compared to [Defendant]’s other facilities, and the relationship between or among those facilities.

If you find by a preponderance of the evidence that the accommodation [Plaintiff] requested would have imposed an undue hardship on the operation of [Defendant]’s business, then you have found that [Defendant] established its affirmative defense, and you will not decide the issue of [Plaintiff]’s damages. But if you find that [Defendant] has not established [his/her/its] affirmative defense, you must decide the damages issue.]

[Without Affirmative Defense: If you find that [Plaintiff] has proved 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 [Defendant]’s failure to provide [Plaintiff] with a reasonable accommodation, 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.

You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:

(a) net lost wages and benefits to the date of your verdict; and

(b) emotional pain and mental anguish.

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

If, however, [Defendant] shows that [Plaintiff] did not make reasonable efforts to obtain any work, then [Defendant] does not have to prove that comparable work was available.

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.]

[Punitive Damages: [Plaintiff] also asks you to award punitive damages. The purpose of punitive damages is not to compensate [Plaintiff] but, instead, to punish [Defendant] for wrongful conduct and to deter similar wrongful conduct. You will only reach the issue of punitive damages if you find for [Plaintiff] and award [him] [her] compensatory damages.

To be entitled to an award of punitive damages [Plaintiff] must prove by a preponderance of the evidence that [Defendant] acted with either malice or with reckless indifference toward [Plaintiff]’s federally protected rights. Specifically, [Plaintiff] must show that an employee of [Defendant], acting in a managerial capacity, either acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights.

There is no bright-line rule about which employees act in a managerial capacity. You must determine whether an employee acted in a “managerial capacity” based upon the type of authority [Defendant] gave the employee and the amount of discretion that the employee has in what is done and how it is accomplished.

To show that [Defendant] acted with malice, [Plaintiff] must show that an employee acting in a managerial capacity knew that federal law prohibits discrimination and discriminated against [Plaintiff] anyway. To show that [Defendant] acted with reckless indifference to [Plaintiff]’s federally protected rights, [Plaintiff] must show that an employee acting in a managerial capacity acted with serious disregard for whether the conduct violated federal law. Either malice or reckless indifference is sufficient to entitle [Plaintiff] to an award of punitive damages; [Plaintiff] need not prove both.

An employer may not be held liable for punitive damages because of discriminatory acts on the part of its managerial employees where the managerial employees’ acts are contrary to the employer’s good faith efforts to comply with the law by implementing policies and programs designed to prevent unlawful discrimination in the workplace. However, the mere existence of policies prohibiting discrimination does not preclude punitive damages if the policies are ineffective.

There is no single factor that determines whether [Defendant] acted with malice or with reckless indifference to [Plaintiff]’s federally protected rights. In determining whether to award punitive damages, you may consider factors such as:

If you find that punitive damages should be assessed against [Defendant], you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages.]

ANNOTATIONS AND COMMENTS

I. Cause of Action

The Americans with Disabilities Act, 42 U.S.C. §12101 et seq. (“ADA”), prohibits employment discrimination on the basis of a disability. Under the ADA, prohibited discrimination includes failure to provide a reasonable accommodation. 42 U.S.C. §12112(b)(5). Pattern Instruction 4.12 is meant to be used for an ADA discrimination claim based on a failure to accommodate a disability. This Pattern Instruction is to be used for claims arising under the ADA Amendments Act of 2008 (“ADA(A)A”), Pub. L. No. 110-325, 122 Stat. 3553 (2008), which became effective on January 1, 2009. At the time of this publication, the Eleventh Circuit had not squarely addressed the question whether the ADA(A)A applies retroactively, but it has suggested that it does not. Tarmas v. Sec’y of Navy, 433 F. App’x 754, 762 n.9 (11th Cir. 2011) (per curiam) (noting that Eleventh Circuit has never held that the ADA(A)A is retroactively applicable and that other circuits have concluded that the ADA(A)A is not retroactively applicable). Accordingly, in the absence of an Eleventh Circuit decision holding that the ADA(A)A is retroactively applicable, the ADA as it existed prior to the ADA(A)A applies to claims based on conduct that occurred before January 1, 2009, and the court should use 2005 Pattern Instruction 4.12 for such claims.

II. Elements and Defenses

A. “Regarded As” Disabled

Pattern Instruction 4.12 is not to be used in cases where the plaintiff is proceeding only under a “regarded as” theory of disability. The ADA(A)A provides that an employer must provide a reasonable accommodation to employees who have an actual disability or a record of disability but not to employees who are merely “regarded as” being disabled. 42 U.S.C. §12201(h); see also 29 C.F.R. §1630.2(o)(4). This provision abrogates the Eleventh Circuit case law obligating employers to provide reasonable accommodations to employees “regarded as” being disabled. D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1235 (11th Cir. 2005).

B. Essential Function

The portion of Pattern Instruction 4.12 defining “essential function” tracks the language explaining that term in 29 C.F.R. §1630.2(n)(2).

C. “Qualified Individual” – Direct Threat

An individual is not a “qualified individual” if, by performing the duties of a given position, he would pose a “direct threat” to himself or others. Pinckney v. Potter, 186 F. App’x 919, 925 (11th Cir. 2006) (per curiam). A “direct threat” is “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. §12111(3). “The employee retains at all times the burden of persuading the jury either that he was not a direct threat or that reasonable accommodations were available.” Moses v. Am. Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996) (per curiam). The “Definition of ‘Qualified Individual’” section contains an optional “direct threat” instruction that should be used if there is a fact question on this issue.

A “direct threat” may include an infectious disease. In Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275 (11th Cir. 2001), the Eleventh Circuit held that where a person poses a significant risk of communicating an infectious disease to others in the workplace and where a reasonable accommodation will not eliminate that risk, the person will not be otherwise qualified for his or her job and thus is not a “qualified individual” under the ADA. Id. at 1280. To determine whether a person who carries an infectious disease poses a significant risk to others, the Eleventh Circuit noted that the following evidence should be considered:

[findings of] facts, based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk, (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.

Id. (alteration in original) (quoting Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 288 (1987)). Where there is a factual dispute on this issue, the jury should be given the “direct threat” instruction, and the court should tailor the “reasonable accommodation” portion of the instruction to address this issue.

There is a circuit split on the issue of who has the burden on the “direct threat” issue. In some circuits, “direct threat” is an affirmative defense, so the employer has the burden to establish that the plaintiff was a direct threat. Wurzel v. Whirlpool Corp., 482 F. App’x 1, 9 n.14 (6th Cir. 2012) (discussing different approaches to burden of proof in direct threat cases). In the Eleventh Circuit, however, “[t]he employee retains at all times the burden of persuading the jury either that he was not a direct threat or that reasonable accommodations were available.” Moses v. Am. Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996) (per curiam).

D. Reasonable Accommodation

Pattern Instruction 4.12 contains three bracketed sample reasonable accommodation instructions that are intended to instruct on three common accommodation requests: (1) reassignment to another position, (2) reassignment of marginal job duties, and (3) modification of work schedule. The jury should be instructed with the language that best fits the facts of the case. If one of the three samples does not apply, then the court should fashion its own reasonable accommodation instruction.

II. Remedies

Pattern Instruction 4.12 instructs that a plaintiff cannot prevail if the plaintiff refused to accept a reasonable accommodation offered by the employer. See Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286-87 (11th Cir. 1997) (finding that ADA liability did not arise where the employee rejected five proposed accommodations but did not provide employer with substantive reasons why the proffered reasons were unreasonable).

In a similar vein, 42 U.S.C. §1981a provides a defense to employers: compensatory and punitive damages may not be awarded on an ADA reasonable accommodation claim “where the covered entity demonstrates good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.” 42 U.S.C. §1981a(a)(3). Therefore, where an employee shows that he requested an accommodation, the employer may avoid damages by demonstrating that it in good faith engaged in the interactive process required by the ADA and tried to find a reasonable accommodation for the employee. The employer has the burden of proof on this defense. Pattern Instruction 4.12 provides an instruction on this defense that should be included if there is a fact dispute on this issue. In some cases, this instruction may need to be combined with the “undue burden” affirmative defense instruction.

For additional discussion of the damages that may be awarded in ADA reasonable accommodation cases, see the Annotations and Comments following Pattern Instruction 4.11, supra.

4 PJI 13 | EQUAL PAY ACT - 29 USC §206(D)(1) AND (3)

In this case, [Plaintiff] claims that [Defendant] violated a federal law called the Equal Pay Act. This law is designed to prevent sex-based wage discrimination by employers.

To succeed on [his/her] claim, [Plaintiff] must prove the following four facts by a preponderance of the evidence:

First: [Defendant] is an employer;

Second: [Defendant] has employed [Plaintiff] and a [male/female] employee in jobs requiring substantially equal skill, effort, and responsibility;

Third: The two jobs are performed under similar working conditions.

Fourth: [Defendant] paid [Plaintiff] a lower wage than the similarly situated [male/female] employee.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

[The parties have agreed that [Defendant] is an employer subject to the Equal Pay Act’s provisions. You should consider that a proven fact.] For the second element, you must consider whether [Plaintiff]’s job required substantially equal skill, effort, and responsibility as the [male/female] employee’s job. You should compare the jobs – not the individual employees holding those jobs. The two jobs do not have to be identical. Rather, the law requires proof that the two jobs be “substantially equal” in skill, effort, and responsibility. Insignificant or trivial differences can be disregarded. The important comparison is the two jobs’ actual work or performance requirements – not the job titles, classifications, or descriptions.

To decide whether the jobs require substantially equal “skill,” you should consider factors such as the level of education, experience, training, and ability required to perform the two jobs.

Remember – you are comparing jobs, not employees, so the fact that the [male/female] employee has a qualification that [Plaintiff] does not have is only relevant if that qualification is necessary for the [male/female] employee’s job.

To decide whether the jobs require substantially equal “effort,” you should compare the amount of physical and mental exertion needed to perform each job. You should weigh duties that result in mental or physical fatigue and emotional stress, or factors that alleviate fatigue and stress, to assess the relative effort involved. Equal effort does not mean that employees must use effort in the same way. If there is no real difference in the amount or degree of effort it takes to perform each job, the jobs require equal effort. But if one job requires additional tasks that take more time and effort, the two jobs do not require substantially equal effort.

To decide whether the jobs involve substantially equal “responsibility,” you should consider the degree of accountability that each job requires. You may consider factors such as:

(a) whether the employees are expected to direct or supervise the work of others;

(b) whether the employees are authorized to represent [Defendant] in dealing with customers, suppliers, or other third parties; and

(c) the potential consequences to [Defendant] of inadequate or improper performance of the jobs [, which may include possible damage to valuable equipment, possible loss of business or productivity, and the possibility of incurring legal liability to third parties].

For the third element, [Plaintiff] must prove that the jobs are performed under similar working conditions. Note that the test here is whether the working conditions are “similar” – they do not need to be substantially equal. To decide whether relative working conditions are similar, you should consider the physical surroundings or the environment in which the work is performed, including the elements to which employees may be exposed. You should also consider travel requirements as well as any work hazards, including the frequency and severity of any risks of injury.

For the fourth element, [Plaintiff] must prove that [Defendant] paid [him/her] a lower wage than [his/her] [male/female] counterpart. To determine this, you should consider all forms of compensation including wages, salary, profit sharing, expense accounts, monthly minimums, bonuses, uniformcleaning allowances, hotel accommodations, use of a company car, gasoline allowances, and fringe benefits.

[Including Affirmative Defense: If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide whether [Defendant] has established [his/her/its] affirmative defense.

To establish [his/her/its] affirmative defense, [Defendant] must prove by a preponderance of the evidence that the difference in the amount of pay between the jobs was not because of [Plaintiff]’s sex but was the result of a [seniority system/merit system/system measuring earnings by quantity or quality of production/describe factor other than sex upon which [Defendant] relies].

[Plaintiff] claims that the difference in pay was not the result of a [seniority system/merit system/system measuring earnings by quantity or quality of production/describe factor other than sex upon which [Defendant] relies] and that [Defendant]’s reason for the difference is only an excuse for paying higher wages to [men/women] for equal work.

If you find that [Defendant] has established its affirmative defense, your verdict must be in favor of [Defendant], and you will not decide the issue of [Plaintiff]’s damages. But if you find that [Defendant] has not established its affirmative defense, you must decide the damages issue.]

[Without Affirmative Defense: If you find that [Plaintiff] has proved 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, 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.

You should consider the following element of damage, to the extent you find that [Plaintiff] has proved it by a preponderance of the evidence, and no others: the amount of [Plaintiff]’s lost compensation. [Plaintiff]’s lost compensation is the difference between the amount [Defendant] should have paid [Plaintiff] and the amount [Defendant] actually paid [Plaintiff]. Put another way, [Plaintiff]’s lost compensation is the difference between [Plaintiff]’s compensation and the [average] compensation of the [male/female] employee[s] in [a] substantially equal job[s].

[Plaintiff] is entitled to recover lost compensation from the date of your verdict back to no more than two years before [he/she] filed this lawsuit on [date of complaint] [, unless you find that [Defendant] “willfully violated” the Equal Pay Act].

[If [Defendant] knew that [his/her/its] conduct 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 about whether the law prohibited [his/her/its] conduct, [his/her/its] conduct was not willful. If you find that [Defendant] willfully violated the Equal Pay Act, then [Plaintiff] is entitled to recover lost compensation from the date of your verdict back to no more than three years before [he/she] filed this lawsuit.]

ANNOTATIONS AND COMMENTS

I. Elements and Defenses

A. “Employer”

Pattern Instruction 4.13 does not define the term “employer,” and the instruction presumes that the issue will not be disputed in most cases. In cases where there is a fact dispute that must be resolved to answer the question whether the defendant is an “employer” within the meaning of the Equal Pay Act (which is part of the Fair Labor Standards Act), the instructions and verdict form should be adapted. Under the FLSA, an “employer” is “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. §203(d). “Whether an individual falls within this definition does not depend on technical or ‘isolated factors but rather on the circumstances of the whole activity.” Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 2008) (internal quotation marks omitted). Pattern Instructions 4.26 and 4.27, infra, provide guidance on this issue.

B. The Burden-Shifting Framework

In an Equal Pay Act (“EPA) case, the plaintiff demonstrates a prima facie case by showing that an employer pays different wages to employees of opposite sexes for equal work on jobs requiring substantially equal skill, effort, and responsibility under similar conditions. Steger v. Gen. Elec. Co., 318 F.3d 1066, 1077-78 (11th Cir. 2003). If the employee presents a prima facie case, “the employer may avoid liability by proving by a preponderance of the evidence that the pay differences are based on ‘(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) ... any other factor other than sex.’” Id. at 1078 (quoting 29 U.S.C. §206(d)(1)). “The burden to prove these affirmative defenses is heavy and must demonstrate that ‘the factor of sex provided no basis for the wage differential.’” Id. (quoting Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995)).

“Once the employer’s burden is met, the employee must rebut the explanation by showing with affirmative evidence that it is pretextual or offered as a post-event justification for a gender-based differential.” Steger, 318 F.3d at 1078 (quoting Irby, 44 F.3d at 954). “To rebut an employer’s legitimate nondiscriminatory reasons for its adverse action, the employee must produce evidence which directly establishes discrimination or which permits the jury to reasonably disbelieve the employer’s proffered reason.” Id. at 1079. “Any believable evidence which demonstrates a genuine issue of fact regarding the truth of the employer’s explanation may sustain the employee’s burden of proof.” Id. In other words, the plaintiff has a burden of production after the employer meets its burden, but the burden of persuasion does not shift back to the plaintiff.

This framework is workable for a summary judgment order, but it is not juryfriendly. Accordingly, Pattern Instruction 4.13 instructs that the plaintiff must prove the elements of the prima facie case. The instruction then instructs on the employer’s burden (and calls it an affirmative defense) and provides a place for the jury to be instructed on the plaintiff’s contention that the employer’s reason for the difference was “only an excuse for paying higher wages to a member of the opposite sex for equal work.”

C. Establishment

“Comparison” employees must work in the same “establishment” as the plaintiff. Mulhall v. Advance Sec., Inc., 19 F.3d 586, 590 (11th Cir. 1994). “The term ‘establishment’ is defined by the Secretary of Labor as ‘a distinct physical place of business rather than... an entire business or ‘enterprise’ which may include several separate places of business.’” Id. at 591 (quoting 29 C.F.R. §1620.9(a) (1993)). A single establishment can include operations at more than one physical location. Id. (citing Brennan v. Goose Creek Consol. Indep. Sch. Dist., 519 F.2d 53, 56 (5th Cir. 1975) (central control and administration of disparate job sites can support finding of single establishment)). However, courts presume that multiple offices are not a single establishment unless unusual circumstances are demonstrated. Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1017 (11th Cir. 1994); see also 29 C.F.R. §1620.9(b) (2009) (“[U]nusual circumstances may call for two or more distinct physical portions of a business enterprise being treated as a single establishment. For example, a central administrative unit may hire all employees, set wages, and assign the location of employment; employees may frequently interchange work locations; and daily duties may be virtually identical and performed under similar working conditions.”).

Pattern Instruction 4.13 does not instruct on the “establishment” issue. If there is a jury question on this point, the instruction and verdict form should be modified accordingly.

D. Substantially Equal Skill, Effort and Responsibility

In evaluating the plaintiff’s case, the plaintiff is not required to prove that the jobs performed are identical; the test is one of substantiality, not identity. Thus, the jury should consider only the skills and qualifications needed to perform the job and should not consider the prior experiences or other qualifications of the other employees. Mulhall v. Advance Sec., Inc., 19 F.3d 586, 592 (11th Cir. 1994); Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir. 1992). Prior experience of other employees may be relevant, however, in determining the employer’s affirmative action defense - - whether the fourth statutory exception (factors other than sex) applies. Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995); Glenn v. General Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 1988).

Pattern Instruction 4.13 breaks this inquiry into three parts: skill, effort, and responsibility.

E. Factors Other than Sex

Although an employer may not rely on a “general practice” as a factor other than sex, it may consider factors such as the “unique characteristics of the same job;... an individual’s experience, training or ability; or... special exigent circumstances connected with the business.” Irby v. Bittick, 44 F.3d 949, 955 (11th Cir. 1995) (quoting Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 1988)); accord Leatherwood v. Anna’s Linen’s Co., 384 F. App’x 853, 860 (11th Cir. 2010) (per curiam) (explaining that exigent circumstances include understaffing and the need to lure a new employee from a competitor).

II. Remedies

“For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of [the Equal Pay Act] shall be deemed to be unpaid minimum wages or unpaid overtime compensation under [the Fair Labor Standards Act.]” 29 U.S.C. §206(d)(3).

A. Amount of Damages

The measure of damages is the difference between the plaintiff’s compensation and the compensation of the employees of the opposite sex who worked in substantially equal jobs. Where there is more than one employee of the opposite sex who worked in substantially equal jobs, the damages can be calculated by calculating the difference between the plaintiff’s salary and the average salary paid to the workers of the opposite sex. Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992).

B. Willful Violations

The statute of limitations for Equal Pay Act suits is two years but is increased to three years for “willful” violations. 29 U.S.C. §255(a); accord Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1162 (11th Cir. 2008). To prove willfulness, “the employee must prove by a preponderance of the evidence that his employer either knew that its conduct was prohibited by the [EPA] or showed reckless disregard about whether it was.” Id. at 1162-63 (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)). The question whether an employer willfully violated the EPA is a jury question. Id. at 1163. Pattern Instruction 4.13 includes a willfulness instruction, which is to be used in cases where there is a dispute as to whether the employer willfully violated the EPA.

C. Liquidated Damages

When the jury assesses compensatory damages for a violation of the EPA, the court must generally add an award of liquidated damages in the same amount. 29 U.S.C. §216(b); accord Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1163 (11th Cir. 2008). There is a good faith defense: if the employer shows “to the satisfaction of the court” that the acts or omissions giving rise to the violation were in good faith and that the employer had reasonable grounds for believing that its act or omission was not a violation of the EPA, then “the court may, in its sound discretion,” reduce or eliminate liquidated damages. 29 U.S.C. §260. “The employer bears the burden of establishing both the subjective and objective components of that good faith defense against liquidated damages.” Alvarez Perez, 515 F.3d at 1163. The good faith defense must be decided by the judge unless the jury finds that the employer acted willfully. Id. If the jury finds that the employer acted willfully, then the court cannot find that the employer acted in good faith, and the court must award liquidated damages. Id. at 1166.

D. Attorney’s Fees and Costs

Section 216(b) of the Fair Labor Standards Act is incorporated into the Equal Pay Act, and therefore “the court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. §216(b).

E. Prejudgment Interest

The court cannot award both liquidated damages and prejudgment interest because such an award would constitute double compensation. Joiner v. City of Macon, 814 F.2d 1537, 1539 (11th Cir. 1987) (citing Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 715 (1945)).

4 PJI 14 | FAIR LABOR STANDARDS ACT - 29 USC §201 ET SEQ

In this case, [Plaintiff] claims that [his/her employer(s)] [name(s) of defendant(s)] did not pay [Plaintiff] the [minimum wage/overtime pay] required by the federal Fair Labor Standards Act, also known as the FLSA.

To succeed on [his/her] claim against [name(s) of [individual manager/supervisor] [and/or] [company] defendant(s)], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Plaintiff] was an employee of [name(s) of defendant(s)] and was [engaged in commerce or in the production of goods for commerce] [employed by an enterprise engaged in commerce or in the production of goods for commerce]; and

Second: [Name(s) of defendant(s)] failed to pay [Plaintiff] the [minimum wage/overtime pay] required by law.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

For the first element, [Plaintiff] must prove by a preponderance of the evidence that [he/she] was an employee [engaged in commerce or in the production of goods for commerce/employed by an enterprise engaged in commerce or in the production of goods for commerce].

The term “commerce” has a very broad meaning and includes any trade, transportation, transmission, or communication between any place within a state and any place outside that state. [Plaintiff] was engaged in the “production of goods” if [he/she] was employed in producing, manufacturing, mining, handling, or transporting goods, or in any other manner worked on goods or any closely related process or occupation directly essential to the production of goods. [An “enterprise engaged in commerce or the production of goods for commerce” means a business that has employees engaged in commerce or the production of commercial goods for commerce and has annual gross sales of at least $500,000.]

[Minimum wage claim: The minimum wage required by the FLSA during the period involved in this case was $ [minimum wage] per hour. [To determine whether the employer(s) [has/have] paid the minimum wage, [it/they] [is/are] entitled to a credit for the reasonable costs of furnishing certain non-cash items to [Plaintiff] [unless those costs are excluded from [Plaintiff]’s wages under the terms of a union contract that applies to [Plaintiff]], such as meals and lodging for the employee’s benefit, and the employee voluntarily accepts them.]

[Overtime claim: The FLSA requires [an] employer(s) to pay an employee at least one-and-one-half times the employee’s “regular rate” for time worked over 403 hours in a workweek. Put another way, if an employee works more than 40 hours in one workweek, the employer(s) must pay the employee the overtime rate of 1.5 times the regular rate for all time worked after the first 40 hours. This is commonly known as time-and-a-half pay for overtime work.]

[The employee’s regular rate for one week is the basis for calculating any overtime pay due to the employee. The “regular rate” for a week is determined by dividing the total wages paid for the week by [40/the total number of hours [Plaintiff]’s weekly salary was intended to compensate]. To calculate how much overtime pay was owed to [Plaintiff] for a certain week, subtract 40 from the total number of hours [he/she] worked and multiply the difference by the overtime rate. [Name(s) of defendant(s)] failed to pay [Plaintiff] the required pay if [he/she/it/they] paid [him/her] less than that amount.]

[Exemption: In this case, [name(s) of defendant(s)] claim[s] that [he/she/it/they] [is/are] exempt from the FLSA’s overtime provisions. To establish that [he/she/it/they] [is/are] exempt, [name(s) of defendant(s)] must prove each of the following facts by a preponderance of the evidence: [List essential elements of the claimed exemption].

If you find that [name(s) of defendant(s)] [is/are] exempt, you will not decide the issue of [Plaintiff]’s damages. But if you find that [name(s) of defendant(s)] [is/are] not exempt, you must decide the issue of [Plaintiff]’s damages.]

The amount of damages is the difference between the amount [Plaintiff] should have been paid and the amount [he/she] was actually paid. [Plaintiff] is entitled to recover lost wages from the date of your verdict back to no more than two years before [he/she] filed this lawsuit [date of complaint] unless you find that the employer(s) either knew or showed reckless disregard for whether the FLSA prohibited [its/their] conduct. If you find that the employer(s) knew or showed reckless disregard for whether the FLSA prohibited [its/their] conduct, then [Plaintiff] is entitled to recover lost wages from date of your verdict back to no more than three years before [he/she] filed this lawsuit.

[Inadequate Records: The law requires [an] employer(s) to keep records of how many hours [his/her/its/their] employees work and the amount they are paid. In this case, [Plaintiff] claims that [name(s) of defendant(s)] failed to keep and maintain adequate records of [his/her] hours and pay. [Plaintiff] also claims that [name(s) of defendant(s)]’s failure to keep and maintain adequate records has made it difficult for [Plaintiff] to prove the exact amount of [his/her] claim.

If you find that [name(s) of defendant(s)] failed to keep adequate time and pay records for [Plaintiff] and that [Plaintiff] performed work for which [he/she] should have been paid, [Plaintiff] may recover a reasonable estimation of the amount of [his/her] damages. But to recover this amount, [Plaintiff] must prove by a preponderance of the evidence a reasonable estimation of the amount and extent of the work for which [he/she] seeks pay.]

[Individual Liability: An individual can also be liable for a plaintiff’s damages under the FLSA if the individual played a substantial role in causing the FLSA violation. To determine whether the individual is liable, you must consider all the relevant circumstances rather than any one technical factor. [Plaintiff] must prove that [name(s) of individual defendant(s)] had operational control over [name(s) of company defendant(s)/the enterprise that is covered by the FLSA]. In other words, [name(s) of individual defendant(s)] must have controlled significant aspects of [name(s) of company defendant(s)]’s day-to-day functions, including employee compensation, or had direct responsibility for the supervision of [Plaintiff].]

ANNOTATIONS AND COMMENTS

The Fair Labor Standards Act (“FLSA”) is found at 29 U.S.C. §201 et seq. Pattern Instruction 4.14 is intended to be used in cases where the plaintiff alleges that the defendant employer failed to pay the minimum wage or overtime pay required by the FLSA. Pattern Instruction 4.14 contains bracketed instructions for each type of FLSA claim.

I. Elements and Defenses

A. 1. “Employee”

Pattern Instruction 4.14 instructs that the plaintiff must have been an employee of the defendant. For cases in which this issue is disputed, the instruction and verdict form should be adapted accordingly. For pattern instructions concerning issues of joint employers or independent contractors, please see Pattern Instructions 4.24 and 4.25, infra.

The employee must also be “engaged in commerce” within the meaning of the FLSA or “employed by an enterprise engaged in commerce.” For a discussion of the “engaged in commerce” requirement, please see Martinez v. Palace, 414 F. App’x 243 (11th Cir. 2011) (per curiam) (finding that a cook at a local restaurant in Alabama was not “engaged in commerce” within the meaning of the FLSA).

2. “Employer”

Pattern Instruction 4.14 may be used when a plaintiff claims the existence of more than one employer, an individual as well as a company. The FLSA defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee . . . .” 29 U.S.C. §203(d). “[T]he FLSA contemplates at least some individual liability, and it is consistent with Congress’s intent to impose liability upon those who ‘control[] a corporation’s financial affairs and can cause the corporation to compensate (or not to compensate) employees in accordance with the FLSA.’” Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1313 (11th Cir. 2013) (first alteration added; quoting Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668, 678 (1st Cir. 1998)).

In Patel v. Wargo, 803 F.2d 632 (11th Cir. 1986), the Eleventh Circuit acknowledged “‘[t]he overwhelming weight of authority is that a corporate officer with operational control of a corporation’s covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.’” Id. at 637–38 (alteration added; quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983)). The Eleventh Circuit later clarified that corporate supervisors other than officers may be personally liable under the FLSA if they are involved in the company’s day-to-day functions or have some direct responsibility for the supervision of the employee. See Lamonica, 711 F.3d at 1310, 1313 (citing Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1160 (11th Cir. 2008)); see also id. at 1313–15 (finding two non-officer supervisors with substantial ownership interests in the corporate employer who exercised control over the company’s day-to-day functions were individually liable under the FLSA).

For cases in which individual liability is at issue, the instruction and verdict form should be adapted accordingly. For pattern instructions concerning issues of joint employers, please see Pattern Instruction 4.25, infra.

B. Amount of Work Performed:

Inaccurate or Inadequate Employer Records When an employer’s records are “inaccurate or inadequate and the employee cannot offer convincing substitutes,” then an employee has carried his burden of proving that he has performed work for which he was not properly compensated. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), superseded by statute on other grounds as stated in Carter v. Panama Canal Co., 463 F.2d 1289, 1293–94 (D.C. Cir. 1972). “The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence.” Id. at 687–88.

C. Regular Rate of Pay

When an employee is compensated solely on a weekly salary basis, the regular hourly rate of pay, on which time and a half must be paid, is computed by dividing the salary by the number of hours the salary is intended to compensate. Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1268 (11th Cir. 2008). For overtime claims involving an employee who is paid a constant weekly salary for fluctuating hours, it may be necessary to modify the instruction so that the jury is instructed on the “fluctuating workweek method” for calculating damages. See generally Lamonica, 711 F.3d at 1310–12; see also 29 C.F.R. §778.114 (explaining how to use the fluctuating workweek method).

D. Exemptions

Pattern Instruction 4.14 leaves it to the court to fashion an instruction regarding the elements of a claimed exemption. The most common exemptions from the overtime pay requirement exist for employees in a “bona fide executive, administrative, or professional capacity” as defined by regulations of the Secretary. 29 U.S.C. §213(a)(1). The elements of the exemptions may be found at 29 C.F.R. §541.1 et seq.

In a suit under the FLSA, the employer carries the burden of proving an overtime pay exemption. Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th Cir. 2004) (per curiam).

II. Remedies

A. Public Employees

Pursuant to the Fair Labor Standards Act, 29 U.S.C. §201 et seq., a public employee working overtime has the choice to be reimbursed either in the form of wages or compensatory time. 29 U.S.C. §207(a)(o). A public employer may only substitute compensatory compensation for overtime pay pursuant to a collective bargaining agreement or agreement between the employer and employee if there is no applicable collective bargaining agreement. 29 U.S.C. §207(o)(2)(A); Chesser v. Sparks 248 F.3d 1117, 1120 n.1 (11th Cir. 2001).

B. Liquidated Damages, Good Faith and Willful Violations

The FLSA provides for liquidated damages and states that such damages shall be paid unless the “employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act,” in which case “the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216” of the FLSA. 29 U.S.C. §260. Under the plain language of the statute, this is a question for the court to determine not the jury. Thus, the court and the jury answer what is essentially the same question for two different purposes. The willfulness or good faith question is answered first by the jury to determine the period of limitations and then, if there is a verdict for the employee, again by the judge to determine whether to award liquidated damages. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1282 (11th Cir. 2008).

When the jury finds an employer has violated the FLSA and assesses compensatory damages, the district court generally must add an award of liquidated damages in an equal amount. 29 U.S.C. §216(b) (“Any employer who violates the provisions of... section 207 of this title shall be liable to the employee or employees affected in the amount of... their unpaid overtime compensation... and in an additional equal amount as liquidated damages.”); Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1163 (11th Cir. 2008). However, the district court has discretion to reduce or deny liquidated damages “if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA].” Morgan, 551 F.3d at 1282 (alteration in original) (internal quotation marks omitted); see also 29 U.S.C. §260. A district court must find that an employer acted in good faith in violating the FLSA before it may award less than the full amount of liquidated damages. Joiner v. City of Macon, 814 F.2d 1537, 1539 (11th Cir. 1987). If the jury finds that the employer acted willfully, however, then the court cannot find that the employer acted in good faith, and the court must award liquidated damages. A jury’s finding that the employer acted willfully precludes the court from finding that the employer acted in good faith when it decides the liquidated damages question. Alvarez Perez, 515 F.3d at 1166.

The statute of limitations for a claim seeking unpaid overtime wages under the FLSA is generally two years. “But if the claim is one ‘arising out of a willful violation,’ the statute of limitations is extended to three years.” Morgan, 551 F.3d at 1280 (quoting 29 U.S.C. §255(a)).

To prove willfulness and therefore obtain the benefit of the three year statute of limitations, an employee must establish that the employer “knew, or showed reckless disregard for, the fact that its conduct was forbidden by the FLSA.” Morgan, 551 F.3d at 1283.

4 PJI 15 | FAMILY AND MEDICAL LEAVE ACT - RETALIATION CLAIMS - 29 USC §2601-2654

In this case, [Plaintiff] claims that [Defendant] violated a federal law called the Family and Medical Leave Act, also known as the FMLA, by [describe challenged employment action] because [describe protected activity]. [Defendant] denies [Plaintiff]’s claims and asserts that [describe the defendant’s] defense.

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:

First: [Plaintiff] was employed by [Defendant];

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].

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

[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:

(a) [Plaintiff] worked for [Defendant] for at least 12 months before the date any FMLA leave was to begin, and

(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.

For the third element, [Plaintiff] was “entitled” to FMLA leave if:

(a) [Plaintiff] had an FMLA-qualifying reason, and

(b) [Plaintiff] gave [Defendant] proper notice of [his/her] need for leave.

[A serious health condition that prevented [Plaintiff] from performing the functions of [his/her] job/The birth or adoption of a child/The care of a spouse, child, or parent who has a serious health condition/Following active duty orders/The care of a covered service member] is an “FMLA-qualifying reason.”

[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:

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

ANNOTATIONS AND COMMENTS

I. Cause of Action

The Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601 et seq., provides for several causes of action, including an interference claim, in which an employee asserts that his employer denied or otherwise interfered with his rights under the FMLA, and a retaliation claim, in which an employee asserts that his employer took an adverse employment action against him because he took an action protected by the FMLA. Pattern Instruction 4.15 is intended to be used for FMLA retaliation claims where the alleged retaliation is based on the exercise of FMLA rights. See 29 C.F.R. §825.220(c) (“The Act’s prohibition against ‘interference’ prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights.”). Pattern Instruction 4.15 may be modified for cases in which a plaintiff alleges that his former employer refused to rehire him based on his past use of FMLA leave. See Smith v. BellSouth Telecomms., Inc., 273 F.3d 1303, 1307 (11th Cir. 2001) (allowing FMLA retaliation claim based on failure to rehire). Pattern Instruction 4.15 is not intended to be used for FMLA interference cases; for such claims, please refer to Pattern Instruction 4.16., infra. If a plaintiff brings alternative claims for FMLA interference and FMLA retaliation based on the same adverse employment action, Pattern Instructions 4.15 and 4.16 may be merged, though the court should be careful to explain the different causation standards and should be aware of the differences in the availability of a causation affirmative defense. For a discussion of the causation standards and affirmative defense availability, please see annotation §II(H) to Pattern Instruction 4.15, infra and annotation §III(B) to Pattern Instruction 4.16, infra.

Pattern Instruction 4.15 is also not intended to be used for FMLA retaliation cases where the alleged retaliation is based on an employee’s complaints about or opposition to practices made unlawful under the FMLA, see 29 U.S.C. §2615(a)(2), or an employee’s participation in an inquiry or proceeding under the FMLA, see 29 U.S.C. §2615(b). For such claims, Pattern Instruction 4.15 may be used as a starting point, but the court should carefully consider whether to charge the “eligible for” and “entitled to” elements. The court should also carefully consider whether “motivating factor” or “but for” causation is required to prove such claims.

II. Elements and Defenses

The definitions of the various terms given in this instruction were derived primarily from 29 U.S.C. §2611 and 29 C.F.R. §825.800.

A. “Employed By”

If there is a dispute as to whether the plaintiff was employed by the defendant, please refer to miscellaneous charges 4.24, 4.25, 4.26, and 4.27 for guidance on instructions related to this issue.

B. “Eligible for” FMLA Leave

To establish a claim of retaliation based on the exercise or attempted exercise of FMLA rights, the plaintiff must establish that he was eligible for FMLA leave at the time the requested leave was to be taken. See Walker v. Elmore Cnty. Bd. of Educ., 379 F.3d 1249, 1253 (11th Cir. 2004) (“[T]he statute does not protect an attempt to exercise a right that is not provided by FMLA, i.e., the right to leave before one becomes eligible therefor.”). Accordingly, 4.15 charges that the plaintiff must be “eligible for” FMLA leave.

A “pre-eligible” employee may state a retaliation claim based on retaliation for a request for “post-eligibility” FMLA leave. Pereda v. Brookdale Senior Living Cmtys, Inc., 666 F.3d 1269, 1275 (11th Cir. 2012) (holding that “pre-eligible request for posteligible leave is protected activity” under the FMLA).

C. “Entitled to” FMLA Leave

To establish a claim of retaliation based on the exercise or attempted exercise of FMLA rights, the plaintiff must establish that the plaintiff was entitled to FMLA leave. See Russell v. N. Broward Hosp., 346 F.3d 1335, 1340 (11th Cir. 2003) (“Interference and retaliation claims both require the employee to establish a ‘serious health condition’ ...”). Therefore, Pattern Instruction 4.15 charges that a plaintiff must be “entitled to” FMLA leave.

D. “Minor Child”

The FMLA provides leave for an employee to care for a spouse, minor child, disabled child, or parent suffering from a serious health condition. 29 U.S.C. §§2611(12), 2612(a)(1)(C). Pattern Instruction 4.15 does not define “minor child.” If there is a dispute on this issue, the charge should be adapted accordingly. The definition of son or daughter includes a biological child, an adopted child, a foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. 29 U.S.C. §2611(12).

E. Covered Service Member/Active Duty Orders

On October 28, 2009, the FMLA was amended to afford leave to care for family of a “covered service member” or “[b]ecause of any qualifying exigency... arising out of the fact that [a] spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.” 29 U.S.C. §2612(a)(1)(E), (3) (amended by Pub. L. 111-84, §565 (Oct. 28, 2009)). Pattern Instruction 4.15 instructs that that “following active duty orders” and “the care of a covered service member” is an “FMLA-qualifying reason” for leave, but the instruction does not define the phrases “following active duty orders” and “covered service members.” In cases where there is a dispute about these issues, the charge should be adapted accordingly.

F. Notice of Need for FMLA Leave

An employee is generally required to give proper notice of the employee’s need for FMLA leave. The amount of time an employee must give for notice to be proper depends on the reason for the leave. Where leave is based on an expected birth, planned medical treatment, or any other reason listed in 29 C.F.R. §825.302(a), notice must be provided at least 30 days in advance, unless 30 days’ notice is not practicable or the reason for the leave is not foreseeable, in which case notice must be given as soon as practicable. 29 U.S.C. §2612(e)(1); 29 C.F.R. §§825.302(a), 825.303(a). Where leave is requested due to a foreseeable, qualifying exigency arising out of a family member’s active duty status or notification of an impending call or order to covered active duty, “the employee shall provide such notice to the employer as is reasonable and practicable.” 29 U.S.C. §2612(e)(3). Pattern Instruction 4.15 provides bracketed charges regarding the sufficiency of notice corresponding to these grounds for requesting FMLA leave.

G. Adverse Employment Action

Pattern Instruction 4.15 includes an optional “adverse employment action” charge to be used when there is a dispute as to whether the employment action is actionable. The charge incorporates the Supreme Court’s definition of adverse employment action in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 (2006), which provides that an adverse employment action is action that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68 (internal quotation marks omitted); see also Breneisen v. Motorola, Inc., 512 F.3d 972, 979 (7th Cir. 2008) (applying Burlington Northern to an FMLA retaliation claim).

H. Causation

The FMLA makes it unlawful for an employer to discriminate against an individual “for opposing any practice made unlawful” by the FMLA, 29 U.S.C. §2615(a) (2), and it also makes it unlawful for any person to discriminate against an individual “because” the individual participated in an inquiry or hearing under the FMLA, 29 U.S.C. §2615(b).

Pattern Instruction 4.15 instructs that the jury must find that the defendant’s decision was “because of” the plaintiff’s protected activity. This language tracks the language of Pattern Instruction 4.10, supra, and Pattern Instruction 4.22, infra.

In Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), the Supreme Court held that to prove discrimination under the Age Discrimination in Employment Act (“ADEA”), the plaintiff must establish “but for” causation and may not prevail “by showing that age was simply a motivating factor.” Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2349-51 (2009). The rationale for this decision: the ADEA’s statutory text makes it unlawful for an employer to discriminate against an individual “because of” the individual’s age. Id. at 2350. Only Title VII was amended to allow for employer liability where discrimination was a “‘ was a motivating factor for any employment practice, even though other factors also motivated the practice.’” Id. n.3 (quoting 42 U.S.C. §2000e-2 (m)). Also, “[b]ecause an ADEA plaintiff must establish ‘but for’ causality, no ‘same decision’ affirmative defense can exist: the employer either acted ‘because of’ the plaintiff’s age or it did not.” Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1204 (11th Cir. 2010). In University of Texas Southwestern Medical Center v. Nassar, No. 12-484, 2013 WL 3155234 (U.S. June 24, 2013), the Supreme Court extended the rationale of Gross to Title VII retaliation claims “[g]iven the lack of any meaningful textual difference between the text in” Title VII’s anti-retaliation provision and the ADEA’s antiretaliation provision. Nassar, 2013 WL 3155234, at *10. Therefore, “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in [42 U.S.C.] §2000e-2(m).” Id. at *14.

Again, the FMLA makes it unlawful for an employer to discriminate against an individual “for opposing any practice made unlawful” by the FMLA, 29 U.S.C. §2615(a) (2), and it also makes it unlawful for any person to discriminate against an individual “because” the individual participated in an inquiry or hearing under the FMLA, 29 U.S.C. §2615(b). The “motivating factor” language of Title VII §2000e-2(m) was not inserted into the FMLA.

Although the Eleventh Circuit has not, at the time of this publication, issued an opinion on this matter, the Committee believes that the rationale of Gross and Nassar may extend to the FMLA because the statutory causation language for FMLA participation clause claims (29 U.S.C. §2615(b)) is the same in the FMLA, ADEA, and Title VII (“because”), and the statutory causation language for FMLA opposition clause (29 U.S.C. §2615(a)(2)) (“for opposing”) is not significantly different. Accordingly, Pattern Instruction 4.15 instructs that the adverse employment action must be “because of” the plaintiff’s protected activity.

I. Pretext

The model instruction includes in brackets an optional charge discussing the inference of pretext. The basis for this charge is explained in further detail in the annotations following Pattern Instruction 4.5, supra.

J. Health Plan Premiums

During an employee’s FMLA leave, an employer must maintain any existing health insurance coverage under a group health plan if the insurance would have been available had the employee not taken leave. 29 U.S.C. §2614(c)(1); see also 29 C.F.R. §825.800 (defining “group health plan”). The employer can recover the premium paid during the leave if the employee fails to return to work based on a voluntary choice rather than continued health problems or other circumstances beyond the employee’s control. 29 U.S.C. §2614(c)(2); 29 C.F.R. §825.100(b). Should an employer seek to recover health plan premiums from an employee, additional instructions and special interrogatories may be appropriate.

K. Key Employee Defense

If an employee is salaried and among the highest paid ten percent of all of the employer’s employees within a 75 mile radius, then the employer may refuse to restore a plaintiff to an equivalent position if it “is necessary to prevent substantial and grievous economic injury to the operations of the employer,” notice is given to the employee, and if leave has commenced “the employee elects not to return to employment after receiving such notice.” 29 U.S.C. §2614(b). This is sometimes called the “key employee” defense. Pattern Instruction 4.15 does not include an instruction on this defense. If there is a fact dispute on this issue, the charge should be adapted. See 29 C.F.R. §825.218.

III. Remedies

A prevailing plaintiff under FMLA is entitled to damages as set forth in 29 U.S.C. §2617(a). The prevailing plaintiff can recover actual damages equal to the amount of “any wages, salary, employment benefits, or other compensation denied or lost” by reason of the employer’s violation of FMLA. Id. §2617(a)(1)(A)(i)(I). If the prevailing plaintiff incurred no such damages, the plaintiff can recover any actual monetary losses sustained as a direct result of the employer’s violation of FMLA, such as the cost of providing care to an injured family member. Id. §2617(a)(1)(A)(i)(II). That alternative measure of damages is limited to a sum equal to twelve weeks of the plaintiff’s pay, or in a case involving leave to care for a servicemember under §2612(a)(3), twenty-six weeks of the plaintiff’s pay. Id. §2617(a)(1)(A)(i)(II). Pattern Instruction 4.15 has bracketed alternative charges regarding the proper measure of damages.

“[T]he FMLA does not allow recovery for mental distress or the loss of job security.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999) (per curiam). In addition, punitive damages are unavailable under FMLA. See, e.g., Farrell v. Tri-Cnty. Metro. Transp. Dist. of Or., 530 F.3d 1023, 1025 (9th Cir. 2008). Therefore, Pattern Instruction 4.15 does not include this category of damages.

An award of liquidated damages equal to the amount of actual damages and interest must be awarded unless the employer “proves to the satisfaction of the court” that the acts or omissions giving rise to the violation were in good faith and that the employer had reasonable grounds for believing that such acts or omissions did not violate FMLA, in which case the court may, in its sound discretion, award no liquidated damages or award an amount not to exceed the amount allowable under the statute. 29 U.S.C. §2617 (a)(1)(A)(iii). The issue of whether to reduce an award of liquidated damages is a question for the judge, not the jury. See, e.g., Cooper v. Fulton Cnty., Ga., 458 F.3d 1282, 1287-88 (11th Cir. 2006) (affirming district court’s award of liquidated damages).

While the FMLA does not expressly authorize a jury trial, the availability of a jury trial may be inferred from its legislative history referencing the Fair Labor Standards Act, which has been consistently interpreted to authorize jury trials. See Frizzell v. Sw. Motor Freight, 154 F.3d 641, 644 (6th Cir. 1998) (holding that a request for damages under FMLA triggers a statutory right to a jury trial). A jury trial is appropriate to decide the issues of back pay, whereas equitable issues such as reinstatement and front pay should be decided by the court. See 29 U.S.C. §2617(a)(1)(B) (permitting a prevailing employee to recover “such equitable relief as may be appropriate, including employment, reinstatement, and promotion”); Dotson v. Pfizer, Inc., 558 F.3d 284, 300 (4th Cir. 2009) (“Determinations of front pay are made by the trial court sitting in equity.”).

4 PJI 16 | FAMILY AND MEDICAL LEAVE ACT - INTERFERENCE CLAIMS (NEW) - 29 USC §2601-2654

In this case, [Plaintiff] claims that [he/she] was entitled to a leave of absence from work under a federal law called the Family and Medical Leave Act, also known as the FMLA, and that [Defendant] interfered with, restrained, or denied [his/her] entitlement to a leave of absence.

Under the FMLA, an eligible employee may take up to 12 weeks of leave during any 12-month period for [the employee’s own serious health condition/the birth, placement 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.

The FMLA also gives the employee, after [his/her] leave, the right to be restored by the employer to the position held when the leave began, or to be given an equivalent position. It is unlawful for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise any of these rights.

To succeed on [his/her] claim against [Defendant], [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Plaintiff] was eligible for FMLA leave;

Second: [Plaintiff] was entitled to FMLA leave;

Third: [Plaintiff] gave [Defendant] proper notice of [his/her] need for leave; and

Fourth: [Defendant] [describe interference, e.g., refused to allow leave, refused [Plaintiff] reinstatement, discharged [Plaintiff], failed to maintain benefits].

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

For the first element, [Plaintiff] was “eligible” for FMLA leave if:

For the second element, [Plaintiff] was “entitled” to FMLA leave if [he/she] had an FMLA-qualifying reason. [A serious health condition that prevented [Plaintiff] from performing the functions of [his/her] job/The birth, placement or adoption of a child/The care of a spouse, child, or parent who has a serious health condition/Following active-duty orders/The care of a covered service member] is an “FMLA-qualifying reason.”

[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.]

For the third element, [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 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 determine whether [Defendant] [describe interference].

[Including Affirmative Defense: If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide whether [Defendant] has established [his/her/its] affirmative defense.

It is lawful for an employer to [describe interference] for reasons unrelated to an employee’s [FMLA leave/attempt to take FMLA leave]. To establish its affirmative defense, [Defendant] must prove by a preponderance of the evidence that [he/she/it] [describe interference] for reasons that were unrelated to [Plaintiff]’s [FMLA leave/attempt to take FMLA leave]. Put another way, [Defendant] must prove that [he/she/it] would have [describe interference] even without the [FMLA leave/attempt to take FMLA leave].

If you find that [Defendant] established [his/her/its] affirmative defense, you will not decide the issue of [Plaintiff]’s damages. But if you find that [Defendant] has not established [his/her/its] affirmative defense, you must decide the damages issue.]

[Without Affirmative Defense: If you find that [Plaintiff] has proved each element [he/she] must prove, you must decide the issue of [Plaintiff]’s damages.]

The measure of damages for [Plaintiff] is either lost wages and benefits or other expenses incurred because of [Defendant]’s FMLA violation. [Plaintiff] can recover lost wages and benefits, or [he/she] can recover other expenses incurred because of [Defendant]’s actions – but not both.]

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 interference] to the date of your verdict.

If you find that [Plaintiff] did not directly lose pay or benefits because of [Defendant]’s FMLA violation, then you may award [Plaintiff] the actual monetary loss that directly resulted from [Defendant]’s FMLA violation. This amount of damages cannot exceed [12/26] weeks of [Plaintiff]’s wages or salary.

[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 [name 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:

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

ANNOTATIONS AND COMMENTS

I. Cause of Action

II. Distinction Between FMLA Interference and FMLA Retaliation Claims:

To state an interference claim, the employee must show that his employer interfered with or denied him an FMLA benefit to which he was entitled. O’Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1353-54 (11th Cir. 2000). The employee “does not have to allege that his employer intended to deny the right; the employer’s motives are irrelevant.” Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1208 (11th Cir. 2001). In contrast, an FMLA retaliation plaintiff must prove that his employer retaliated against him because he engaged in activity protected by the FMLA. See Spakes v. Broward Cnty. Sheriff’s Office, 631 F.3d 1307, 1309-10 (11th Cir. 2011) (per curiam) (noting that an FMLA retaliation plaintiff has an increased burden of proving causal nexus that an interference plaintiff does not have).

III. Elements and Defenses

A. Elements Common to Interference and Retaliation Claims

To prevail on an FMLA interference claim or an FMLA retaliation claim, the plaintiff must be eligible for FMLA leave, be entitled for FMLA leave, and give the employer proper notice of the need for FMLA leave. For a discussion of these elements, please see the annotations and comments following Pattern Instruction 4.15, supra.

A “pre-eligible” employee may state an interference claim based on interference with “post-eligibility” FMLA leave. Pereda v. Brookdale Senior Living Cmtys., Inc., 666 F.3d 1269, 1275 (11th Cir. 2012) (holding that “a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible”).

B. “Lack of Causation” Affirmative Defense

To prove an FMLA interference claim, a plaintiff does not have to prove a “causal nexus” between the FMLA leave and the employer’s action. Spakes v. Broward Cnty. Sheriff’s Office, 631 F.3d 1307, 1309-10 (11th Cir. 2011). Rather, the plaintiff must prove “that he was denied a benefit to which he was entitled under the FMLA.” Id. at 1309. “[T]he causal nexus element is the “increased burden” that a retaliation plaintiff faces that an interference plaintiff does not.” Id. at 1310. Eleventh Circuit “cases make clear that a causal nexus is not an element of an interference claim, but that the employer can raise the lack of causation as an affirmative defense.” Id. at 1310. Therefore, if the employee alleges that the employer interfered with the employee’s FMLA rights, the employer may prevail if it shows that the employer would have taken the same action – such as refusing to reinstate the employee following FMLA leave – even if the employee had not taken FMLA leave. Id.; accord Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1241 (11th Cir. 2010); Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1208 (11th Cir. 2001) (“[I]f an employer can show that it refused to reinstate the employee for a reason wholly unrelated to the FMLA leave, the employer is not liable.”).

IV. Remedies

For a discussion of the remedies available to a plaintiff who prevails on an FMLA claim, please see the annotations and comments following Pattern Instruction 4.15, supra.

4 PJI 17 | EMPLOYEE CLAIM AGAINST EMPLOYER AND UNION (VACA V SIPES)

In this case, [Plaintiff] makes two claims. The first claim is that [Plaintiff]’s employer discharged [Plaintiff] without just cause in violation of the collective-bargaining agreement governing the terms and conditions of [his/her] employment.

The second claim is that [Plaintiff]’s union breached its duty to fairly represent [Plaintiff] as one of its members by failing to investigate or otherwise process [his/her] grievance against [his/her] employer under the collective-bargaining agreement’s grievance procedure.

The law prohibits an employer from discharging an employee governed by a collective-bargaining agreement unless there is just cause to dismiss the employee.

“Just cause” means a real cause or basis for dismissal – not an arbitrary whim. “Just cause” is something that a reasonable employer, acting in good faith in similar circumstances, would regard as a good reason for dismissing an employee.

For the first claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Name of employer] discharged [Plaintiff] from employment; and

Second: [Name of employer] discharged [Plaintiff] without just cause.

If you find for [Plaintiff] on the first claim, you must consider the second claim: that [Union] breached its duty of fair representation – that [Union] did not fairly represent [Plaintiff] as one of its members.

To succeed on this second claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Name of employer] discharged [Plaintiff] from employment, and that the discharge was without just cause;

Second: [Plaintiff] was a member of a collective-bargaining unit represented by [Union];

Third: [Plaintiff] filed a grievance with [Union];

Fourth: [Union] breached its duty of fair representation by handling the grievance proceedings arbitrarily, discriminatorily, or in bad faith; and

Fifth: [Union]’s breach materially affected the outcome of [Plaintiff]’s grievance hearing.

A union has a legal duty to fairly represent the interests of its members in protecting their rights under a collective-bargaining agreement. But an employee does not have an absolute right to require the union to pursue a grievance against an employer. The test is basic fairness. As long as the union acts in good faith, the law allows it to exercise broad discretion to determine whether it should pursue the employee’s grievance against an employer under a collective-bargaining agreement.

For example, the union may weigh the cost of pursuing a grievance against the likelihood of success. So even if an employee’s grievance has merit, mere negligence or the union’s exercise of poor judgment does not establish a breach of its duty of fair representation.

But when a union acts arbitrarily or carelessly, or dishonestly and in bad faith, by refusing to pursue a union member’s meritorious grievance, it violates its duty to represent fairly the member who lodged the grievance.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

If you find for [Plaintiff] on [his/her] first claim or on both claims, you must consider [his/her] damages. The damage award should be an amount that justly compensates [him/her] for the damages [he/she] incurred.

The measure of these damages, if any, is the amount [Plaintiff] would have earned from [his/her] employment with [name of employer] if [name of employer] had not discharged [him/her]. But you must reduce this amount by any earnings [Plaintiff] received, or reasonably could have received, from other employment. [Plaintiff] has a duty to mitigate or minimize the damages. [Defendant] is not responsible for lost earnings to the extent that [Plaintiff] could have avoided those lost earnings by using reasonable care in seeking other employment.

After you have determined an amount for damages, if you have found for [Plaintiff] and against both the employer and the union, you must then divide the damages between the employer and the union. The employer is only responsible for lost wages caused by discharging [Plaintiff] in breach of the collective-bargaining agreement. But any increase in lost wages that the union caused by failing to pursue [Plaintiff]’s grievance should be charged to the union – not to the employer.

So if you decide that [Plaintiff] would have been reimbursed for lost wages or reinstated to [his/her] job if the union had fairly represented [him/her], then you must divide those lost wages between the employer and the union. In that case, you should allot damages to the union to the extent its breach of duty to fairly represent [Plaintiff] increased the amount of wages [he/she] lost.

ANNOTATIONS AND COMMENTS

This jury instruction applies when an employee or former employee files a hybrid breach of contract - breach of duty of fair representation suit against the employer and union, such as in Vaca v. Sipes, 386 U.S. 171 (1967). See also Labor Management Relations Act §301, 29 U.S.C. §185. A plaintiff may decide to sue one defendant and not the other. See generally Diaz v. Schwerman Trucking Co., 709 F.2d 1371, 1375-76 (11th Cir. 1983) (per curiam); see also Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558, 564 (1990) (“Because most collective-bargaining agreements accord finality to grievance or arbitration procedures... an employee normally cannot bring a §301 action against an employer unless he can show that the union breached its duty of fair representation in its handling of his grievance.”).

Unions have broad discretion in deciding whether to prosecute a grievance, subject only to the duty of fair representation. Turner v. Air Transp. Dispatchers’ Ass’n, 468 F.2d 297, 300 (5th Cir. 1972). In deciding whether to prosecute a grievance, the union may consider tactical and strategic factors such as its limited resources and consequent need to establish priorities, as well as its desire to maintain harmonious relations among the workers and between the workers and the employer. Pryner v. Tractor Supply Co., 109 F.3d 354, 362 (7th Cir. 1997).

In Air Line Pilots Association International v. O’Neill, 499 U.S. 65 (1991), the Court extended a union’s duty of fair representation to include “all union activity, including contract negotiation.” Id. at 67. The Court further defined breach of the duty of fair representation to include union actions which are either “arbitrary, discriminatory, or in bad faith,” and ruled that “a union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a ‘wide range of reasonableness,’ as to be irrational.” Id. (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)).

Bad faith on the part of the union “requires a showing of fraud, deceitful action or dishonest action.” Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 531 (10th Cir. 1992) (citing Motor Coach Emps. v. Lockridge, 403 U.S. 274, 299 (1971)). Personal hostility is not enough to establish unfair representation if the representation was adequate and there is no evidence that the personal hostility tainted the union’s actions. Freeman v. O’Neal Steel, Inc., 609 F.2d 1123, 1127-28 (5th Cir. 1980); accord VanDerVeer v. United Parcel Serv., Inc., 25 F.3d 403, 405 (6th Cir. 1994). Mere negligence is never sufficient to sustain a claim for breach of the duty of fair representation. Parker v. Connors Steel Co., 855 F.2d 1510, 1521 (11th Cir. 1988).

A union owes the duty of fair representation to all members of its collective bargaining unit, whether or not the employee in question is a union member. Sanderson v. Ford Motor Co., 483 F.2d 102, 109-10 (5th Cir. 1973).

The limitations period for bringing a hybrid breach of contract – breach of the duty of fair representation claim is six months from the date of the employer or union’s final action, whichever is later. Coppage v. U. S. Postal Serv., 281 F.3d 1200, 1204 (11th Cir. 2002) (citing DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 169-71 (1983)).

Generally, damages are apportioned between the employer and union according to the damage caused by each. Vaca v. Sipes, 386 U.S. 171, 197-98 (1967). However, joint and several liability may be appropriate where the employer and union actively participated in each other’s breach. Lewis v. Tuscan Dairy Farms, Inc., 25 F.3d 1138, 1145-46 (2nd Cir. 1994) (citing Vaca, 386 U.S. at 197 n.18).

4 PJI 18 | USERRA - 38 USC §4311(A) - USERRA DISCRIMINATION - INCLUDING "SAME DECISION" DEFENSE

In this case, [Plaintiff] makes a claim under the Uniformed Services Employment and Reemployment Rights Act, also called USERRA. USERRA prohibits an employer from discriminating against an employee in the terms and conditions of the employee’s employment because the employee [is a member of/applies to be a member of/performs service in/has performed service in/applies to perform service in/has an obligation to perform service in] a uniformed service.

[Plaintiff] claims that [Defendant] discriminated against [Plaintiff] by [discharging [him/her] from employment/denying [him/her] a promotion] because [he/she] [was a member of/applied to be a member of/performed service in/applied to perform service in/had an obligation to perform service in] a uniformed service.

[Defendant] denies [Plaintiff]’s claim and asserts that [describe the defendant’s defense].

To succeed on [his/her] claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Plaintiff] [was a member of/applied to be a member of/performed service in/applied to perform service in/had an obligation to perform service in] a uniformed service;

Second: [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion]; and

Third: [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service was a motivating factor that prompted [Defendant] to take that action.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

[Name of Armed Forces Branch/Army National Guard/Air National Guard] is a “uniformed service.”

If you find that [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion], you must decide whether plaintiff’s [membership/application for membership/service/application for service/obligation for service] was a motivating factor in [Defendant]’s decision.

To prove that [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service was a “motivating factor” in [Defendant]’s decision, [Plaintiff] does not have to prove that [his/her] [membership/application for membership/service/application for service/obligation for service] in a uniformed service was the only reason that [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion]. It is enough if [Plaintiff] proves that [his/her] [membership/application for membership/service/application for service/obligation for service] in a uniformed service influenced [Defendant]’s decision. If [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service made a difference in [Defendant]’s decision, you may find that it was a motivating factor in the decision.

[Defendant] claims that [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service was not a motivating factor in [his/her/its] decision and that [he/she/it] [discharged/did not promote] [Plaintiff] for [another reason/other reasons]. An employer may not discriminate against an employee because of the employee’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service. But an employer may [discharge/decline to promote] an employee for any other reason, good or bad, fair or unfair. If you believe [Defendant]’s reason[s] for [his/her/its] decision [to discharge/not to promote] [Plaintiff] and find that [his/her/its] decision was not motivated by [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service, 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] [membership/application for membership/service/application for service/obligation for service] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff]. I have explained to you that evidence can be direct or circumstantial. To decide whether [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff], 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 discriminatory reason[s] for the decision.]

[Including Affirmative Defense: If you find in [Plaintiff]’s favor for each element that [he/she] must prove, you must decide whether [Defendant] has shown by a preponderance of the evidence that [he/she/it] would have [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion] even if [Defendant] had not taken [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service into account. If you find that [Plaintiff] [would have been dismissed/would not have been promoted] for [a] reason[s] other than [his/her] [membership/application for membership/service/application for service/obligation for service] in a uniformed service, you must make that finding in your verdict.

If you find for [Plaintiff] and against [Defendant] on this defense, you must consider [Plaintiff]’s compensatory damages.]

[Without Affirmative Defense: If you find in [Plaintiff]’s favor for each element that [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 [discharge/denied promotion], 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 [discharge/denial of promotion] 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 [he/she] lost and the monetary value of any benefits [he/she] 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:

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

ANNOTATIONS AND COMMENTS

38 U.S.C. §4311 states:

(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation...

(c) An employer shall be considered to have engaged in actions prohibited –

(1) under subsection (a), if the person’s membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service...

38 U.S.C. §4311.

The term “uniformed services” means the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency.

38 U.S.C. 4303(16).

The term “benefit of employment” is defined as “any advantage, profit, privilege, gain, status, [or] account... that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes... vacations, and the opportunity to select work hours or location of employment.” 38 U.S.C. §4303(2).

The term “service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty, and a period for which a person is absent from employment for the purpose of performing funeral honors duty as authorized by [10 U.S.C. §12503 or 32 U.S.C. §115].

38 U.S.C. §4303(13).

The Eleventh Circuit has stated that §4311 clearly mandates proof of discriminatory motive. A motivating factor does not mean that it had to be the sole cause of the employment action. Instead, “it is one of the factors that a truthful employer would list if asked for the reasons for its decision.” Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1238 (11th Cir. 2005) (internal quotation marks omitted). “Indeed, [m]ilitary status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration.” Id. (alteration in original) (internal quotation marks omitted).

USERRA provides that a court may award three kinds of relief: (1) an injunction requiring an employer to comply with USERRA’s provisions; (2) compensation for lost wages or benefits suffered by reason of the employer’s failure to comply with USERRA, and (3) liquidated damages in an amount equal to lost wages or benefits if the employer’s failure to comply with USERRA was willful. 38 U.S.C. §4323(d)(1)(A)-(C).

USERRA does not allow damages for mental anguish or emotional distress, nor does it allow recovery of punitive damages. Dees v. Hyundai Motor Mfg. Ala., LLC 605 F. Supp. 2d 1220, 1229 (M.D. Ala. 2009), aff’d 368 F. App’x 49 (11th Cir. 2010) (per curiam).

Section 4324 of USERRA applies where the employer is a “Federal executive agency.” Section 4324 does not authorize a private USERRA action against the Federal Government, as an employer, in federal district court; rather, it confers jurisdiction upon the Merit Systems Protection Board (“MSPB”). See 38 U.S.C. §4324(b). For the definition of “Federal executive agency,” see 38 U.S.C. §4303(5).

Where relevant, apply the Cat’s Paw instruction for employment cases. See Pattern Instruction 4.5, supra.

4 PJI 19 | USERRA - 38 USC §4311(B) - USERRA RETALIATION

In this case, [Plaintiff] claims that [Defendant] retaliated against [Plaintiff] because [he/she] took steps to enforce [his/her] lawful rights under the Uniformed Services Employment and Reemployment Rights Act, also called USERRA.

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:

First: [Plaintiff] engaged, in good faith, in an activity protected by USERRA;

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.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

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:

(1) work comparable to the position [Plaintiff] held with [Defendant] was available, and

(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.

ANNOTATIONS AND COMMENTS

38 U.S.C. §4311 states, in part:

(b) An employer may not discriminate in employment against or take any adverse employment action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has exercised a right provided for in this chapter. The prohibition in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services.

(c) An employer shall be considered to have engaged in actions prohibited – * * *

(2) under subsection (b), if the person’s (A) action to enforce a protection afforded any person under this chapter, (B) testimony or making of a statement in or in connection with any proceeding under this chapter, (C) assistance or other participation in an investigation under this chapter, or (D) exercise of a right provided for in this chapter, is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such person’s enforcement action, testimony, statement, assistance, participation, or exercise of a right.

Under the plain language of the statute, the plaintiff does not have to establish application to serve or service in a uniformed service to be entitled to the protections of this law.

The term “uniformed services” means the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency.

38 U.S.C. §4303(16).

USERRA provides that a court may award three kinds of relief: (1) an injunction requiring an employer to comply with USERRA’s provisions; (2) compensation for lost wages or benefits suffered by reason of the employer’s failure to comply with USERRA, and (3) liquidated damages in an amount equal to lost wages or benefits if the employer’s failure to comply with USERRA was willful. 38 U.S.C. §4323(d)(1)(A)-(C).

USERRA does not allow damages for mental anguish or emotional distress, nor does it allow recovery of punitive damages. Dees v. Hyundai Motor Mfg. Ala., LLC, 605 F. Supp. 2d 1220, 1229 (M.D. Ala. 2009), aff’d 368 F. App’x 49 (11th Cir. 2010) (per curiam).

4 PJI 20 | USERRA - 38 USC §4312 - REEMPLOYMENT

In this case, [Plaintiff] makes a claim under the Uniformed Services Employment and Reemployment Rights Act, also called USERRA.

Under USERRA, employees who leave civilian jobs to serve in the military are entitled to reemployment rights and benefits upon their return from service. [Plaintiff] claims [he/she] was entitled to be reemployed by [Defendant]. [Defendant] denies [Plaintiff] was entitled to such a right.

To succeed on [his/her] claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:

First: [Plaintiff] left employment with [Defendant] to perform service in a uniformed service;

Second: [Plaintiff] gave [Defendant] advance notice of the service – unless it was impossible or unreasonable to give notice;

[Third: The cumulative length of [Plaintiff]’s absences from employment with [Defendant] due to periods of military service was not more than five years;]

Fourth: After completing the service, [Plaintiff] timely returned to [Defendant] or applied for reemployment with [Defendant]; and

Fifth: [Plaintiff] was separated from the service under honorable conditions.

[Name of Armed Forces Branch/Army National Guard/Air National Guard] is a “uniformed service.”

For the first element, “service in a uniformed service” means the voluntary or involuntary performance of duty. It includes:

(a) active duty;

(b) active duty for training;

(c) initial active duty for training;

(d) inactive duty training;

(e) full-time National-Guard duty;

(f) a person’s absence from a position of employment for an examination to determine the person’s fitness to perform any of these duties; and

(g) a person’s absence from employment for performing funeral-honors duty.

For the second element, if you find that [Plaintiff] left employment with [Defendant] to perform service in a uniformed service, you must decide whether [Plaintiff] gave [Defendant] advance notice of [his/her] obligation [or was excused from giving notice because it was impossible or unreasonable]. The advance notice to [Defendant] of [Plaintiff]’s obligation or intention to perform military service can be written or oral, and it may be informal.

[For the third element, add up the number of days or months that [Plaintiff] was absent from his employment with [Defendant].]

For the [third/fourth] element, a “timely return” depends on how long [Plaintiff]’s period of service was.

[Period of service less than 31 days or for a period of any length for the purpose of a fitness examination: To establish a timely return for purposes of reemployment, [Plaintiff] must prove by a preponderance of the evidence that [he/she] reported to [Defendant] no later than the start of the first full regularly scheduled work period on the first full calendar day after [he/she] completed service – except that [he/she] is not required to report before eight hours past the time needed for safe transportation from the place of service to [his/her] home. For example, if [Plaintiff] completes [his/her] service, travels home, and arrives at ten o’clock in the evening, [he/she] cannot be required to report to [Defendant] earlier than six o’clock the next morning- eight hours after arriving home.

If it is impossible or unreasonable for [Plaintiff] to report within that period through no fault of [his/her] own, [he/she] must report to the employer as soon as possible after the eight-hour period.]

[Period of service more than 30 days but less than 181 days: To establish a timely return for purposes of reemployment, [Plaintiff] must prove by a preponderance of the evidence that [he/she] applied to return to work no later than 14 days after [he/she] completed the military service. The application that [Plaintiff] submitted does not need to follow any particular format and [he/she] may make it orally or in writing. If it is impossible or unreasonable for [Plaintiff] to apply within 14 days through no fault of [his/her] own, [he/she] must submit the application to [Defendant] not later than the next full calendar day after it becomes possible to do so.]

[Period of service more than 180 days: To establish a timely return for purposes of reemployment, [Plaintiff] must prove by a preponderance of the evidence that [he/she] applied to return to work no later than 90 days after [he/she] completed the military service. The application that [Plaintiff] submitted does not need to follow any particular format and [he/she] may make it orally or in writing.]

[Prompt reemployment: To prove that [Defendant] violated the reemployment requirement of USERRA, [Plaintiff] must prove by a preponderance of the evidence that [Defendant] failed to offer [him/her] reinstatement as soon as was practicable under the circumstances. Uncertainty or mistake about what rights USERRA grants – on the part of either [Plaintiff] or [Defendant] – does not affect USERRA’s prompt reinstatement requirement. [Defendant] must prove that unusual circumstances justified or excused any delay in [Plaintiff]’s reemployment.]

ANNOTATIONS AND COMMENTS

USERRA provides reemployment rights to “any person whose absence from a position of employment is necessitated by service in the uniformed services.” 38 U.S.C. §4312(a). To invoke the right to reemployment, a returning service member must comply with the procedural requirements of 38 U.S.C. §4312. Rogers v. City of San Antonio, 392 F.3d 758, 762-63 (5th Cir. 2004). 38 U.S.C. §4312 does not require a showing of discriminatory intent. Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1235 (11th Cir. 2005).

38 U.S.C. §4313 details the manner in which an employer must reemploy a service member, including setting forth a means to determine to what position the employee must be reinstated.

A person who is reemployed under “USERRA is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.” 38 U.S.C. §4316(a).

Reemployment-position claims

When a claim is for an employer’s failure to reinstate an employee to the same position, or a to a position which is similar, the Committee recommends the insertion of the following language:

It is your duty as a jury to determine, first, the applicable reemployment position and, second, whether Defendant employed Plaintiff in that position. USERRA sets an order of priority to determine which reemployment position is appropriate. Generally speaking, an employee is entitled to the position [he/she] would have but for [his/her] service in the uniformed services, or a position of like seniority, status and pay. However, if Plaintiff is not qualified to perform the duties of such a position, then [he/she] is entitled to the position [he/she] held as of the date [his/her] leave to service in the uniformed services began.

Should you find that Plaintiff is not qualified to be employed in the position of employment in which Plaintiff would have been employed but for the interruption of employment by service in the uniformed services, and further find that Plaintiff is not qualified for [his/her] position prior to [his/her] service in the uniformed services for any reason you must then decide if Defendant failed to use reasonable efforts to enable Plaintiff to become qualified. If you make each of these findings, then Defendant has a duty to provide Plaintiff any position which is the nearest approximation to first, the position Plaintiff would have been in but for [his/her] service in the uniformed services, or second, the position Plaintiff was in prior to [his/her] service in the uniformed services.

Plaintiff bears the burden of proof to show that Defendant failed to reemploy [him/her] in an appropriate position, that is, the position which reflected with reasonable certainty the pay, benefits, seniority, and other job perquisites that Plaintiff would have attained but for [his/her] military service or a position of like seniority, status, and pay; or to [his/her] preservice position; or to a position which was the nearest approximation to any of these positions.

To determine if a position is of like seniority, status, and pay, you may examine any agreements, policies of the company, and practices at the company. In evaluating if a reemployment position is of like status, you may consider the opportunities for advancement, the general working conditions, the location of the job, the shift assignment, the rank, and the responsibility.

See 38 U.S.C. §4313.

Affirmative defenses to reemployment claims

Affirmative defenses to a reemployment claim under USERRA are statutory. See 38 U.S.C. §4312(d). When a defendant raises affirmative defenses, the following language, as appropriate, should be inserted in the charge:

Defendant has raised [an] affirmative defense[s] against Plaintiff’s claims. Defendant bears the burden of proof by a preponderance of the evidence on [this] [these] defense[s].

Even if Plaintiff is otherwise eligible for reemployment benefits, Defendant is not required to reemploy [him/her] if it proves by a preponderance of the evidence that the employment position vacated by Plaintiff in order to perform service in the uniformed services was for a brief, nonrecurring period and that there was no reasonable expectation that the employment would continue indefinitely or for a significant period.

Even if Plaintiff is otherwise eligible for reemployment benefits, Defendant is not required to reemploy [him/her] if Defendant proves by a preponderance of the evidence that its circumstances had so changed as to make reemployment impossible or unreasonable. The fact that Defendant may have hired a replacement worker in Plaintiff’s pre-service position does not allow Defendant to refuse to reemploy Plaintiff when [he/she] returned from military service, even if reemployment of Plaintiff might require the termination of that replacement employee.

Even if Plaintiff is otherwise eligible for reemployment benefits, Defendant was not required to reemploy [him/her] if Defendant proves by a preponderance of the evidence that assisting Plaintiff in becoming qualified for reemployment would have imposed an undue hardship.

[The term “qualified” means that Plaintiff has the ability to perform the essential tasks of the position. Plaintiff’s inability to perform one or more non-essential tasks of a position does not make [him/her] unqualified. “Undue hardship” as used in this charge, means an action requiring significant difficulty or expense, when considered in light of –

(1) The nature and cost of the action needed to comply with USERRA;

(2) The overall financial resources of the facility or facilities involved in the provision of the action; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such action upon the operation of the facility;

(3) The overall financial resources of the employer; the overall size of the business of an employer with respect to the number of its employees; the number, type, and location of its facilities; and

(4) The type of operation or operations of the employer, including the composition, structure, and functions of the work force of such employer; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer.

See 20 C.F.R. §1002.139(c). For the statutory definitions of “undue hardship,” see 38 U.S.C. §4303(15)(A)-(D).

Discharge for cause during protected period

Once a plaintiff is reemployed under USERRA, he or she is entitled not to be terminated, except for cause, for a specified time of such reemployment. See 38 U.S.C. §4316(c). Hence, where appropriate, the following charge should be inserted:

[Because Plaintiff performed more than 180 days of service in the services prior to [his/her] return to employment with Defendant, Defendant was prohibited from terminating Plaintiff, except for cause, for the first year of Plaintiff’s reemployment.]

[Because Plaintiff performed more than 30 but less than 181 days of service in the services prior to [his/her] return to employment with Defendant, Defendant was prohibited from terminating Plaintiff, except for cause, for the first 180 days of Plaintiff’s reemployment.]

Where, as here, Defendant alleges the discharge was based upon Plaintiff’s conduct, Defendant bears the burden of proving by a preponderance of the evidence that its discharge of Plaintiff for the conduct in question was reasonable, and that Plaintiff had prior notice that the conduct in question would constitute cause for discharge. Such notice may be written, oral, or fairly implied under the circumstances.

Where, as here, Defendant alleges a legitimate nondiscriminatory reason for the termination of Plaintiff, such as a layoff or elimination of Plaintiff’s position, Defendant bears the burden of proving by a preponderance of the evidence that the layoff or job elimination was for a legitimate nondiscriminatory reason and that such layoff would have affected anybody in Plaintiff’s position, regardless of his or her protected status or activity.

Other USERRA Considerations:

Entitlement to benefits under USERRA ends upon any discharge from uniformed service that is not an honorable discharge. 38 U.S.C. §4304.

The term “uniformed services” means the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency.

38 U.S.C. 4303(16).

USERRA provides that a court may award three kinds of relief:

(1) an injunction requiring an employer to comply with USERRA’s provisions;

(2) compensation for lost wages or benefits suffered by reason of the employer’s failure to comply with USERRA, and

(3) liquidated damages in an amount equal to lost wages or benefits if the employer’s failure to comply with USERRA was willful. 38 U.S.C. §4323(d)(1)(A)-(C).

USERRA does not allow damages for mental anguish or emotional distress, nor does it allow recovery of punitive damages. Dees v. Hyundai Motor Mfg. Ala., LLC, 605 F. Supp. 2d 1220, 1229 (M.D. Ala. 2009), aff’d 368 F. App’x 49 (11th Cir. 2010) (per curiam).

REPEALED

4 PJI 21 | RETALIATION – 42 USC §1981

In this case, [Plaintiff] claims that [Defendant] retaliated against [Plaintiff] because [he/she] took steps to enforce [his/her] lawful rights under the Federal Civil Rights statutes that prohibit employers from discriminating against an employee in the terms and conditions of employment because of the employee’s race.

Laws that prohibit discrimination in the workplace also prohibit an employer from taking any retaliatory action against an employee because the employee has asserted rights or made complaints under those laws.

An employee may make a discrimination complaint as a means to enforce what [he/she] believed in good faith to be [his/her] lawful rights. So, even if a complaint of discrimination against an employer is later found to be invalid or without merit, the employee cannot be penalized in retaliation for having made such a complaint if you find that the employee made the complaint as a means of seeking to enforce what the employee believed in good faith to be [his/her] lawful rights. To establish “good faith,” however, it is insufficient for [Plaintiff] merely to allege that [his/her] belief in this regard was honest and bona fide; the allegations and the record must also establish that the belief, though perhaps mistaken, was objectively reasonable.

[Plaintiff] claims that [Defendant] [describe adverse employment action] because [Plaintiff] [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 each of the following facts by a preponderance of the evidence:

First: [Plaintiff] engaged in a protected activity;

Second: [Defendant] then took an adverse employment action;

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.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

For the first element, [Plaintiff] claims that [he/she] engaged in protected activity when [he/she] [describe opposition clause activity]. That action is “protected activity” if it was based on [Plaintiff]’s good-faith, reasonable belief that [Defendant] discriminated against [him/her/another employee] because of [protected trait]. [Plaintiff] had a “good faith” belief if [he/she] honestly believed that [Defendant] discriminated against [him/her/another employee] because of [protected trait]. [Plaintiff] had a “reasonable” belief if a reasonable person would, under the circumstances, believe that [Defendant] discriminated against [him/her/another employee] because of [protected trait]. [Plaintiff] does not have to prove that [Defendant] actually discriminated against [him/her/another employee] because of [protected trait]. But [he/she] must prove that [he/she] had a good-faith, reasonable belief that [Defendant] did so.

For the second element, [Plaintiff] claims that [Defendant] took an adverse employment action against [him/her] when [Defendant] [describe adverse employment action]. You must decide whether [describe adverse 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 make or support a charge of discrimination. Put another way, if a reasonable employee would be less likely to complain about or oppose alleged discrimination 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 make complaints about or oppose the alleged discrimination, it is not an adverse employment action.

For the third element, if you find that [Plaintiff] engaged in protected activity and that [Defendant] took an adverse employment action against [him/her], you must decide whether [Plaintiff]’s protected activity was a “motivating factor” in the decision.

To prove that 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 the 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 in the decision and that [he/she] [describe adverse employment action] for [another reason/other reasons]. An employer may not take an adverse 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 you find that [Defendant]’s decision was not motivated by [Plaintiff]’s 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 [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 [Plaintiff]’s protected activity was a motivating factor in [Defendant]’s decision to [describe adverse employment action], 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.]

[Including Affirmative Defense (if applicable, see annotations): If you find in [Plaintiff]’s favor the first three elements [he/she] must prove, you must decide whether [Defendant] has shown by a preponderance of the evidence that [he/she/it] would have [describe adverse employment action] [Plaintiff] even if [Defendant] had not taken [Plaintiff]’s protected activity into account. If you find that [Plaintiff] would have been [describe adverse employment action] for reasons other than [his/her] protected activity, you must make that finding in your verdict

If you find for [Plaintiff] and against [Defendant] on this defense, you must decide whether [Defendant]’s acts were the proximate cause of damages that [Plaintiff] sustained. Put another way, you must decide, if [Defendant] had not [describe adverse employment action] [Plaintiff], whether these damages would have occurred.]

[Without Affirmative Defense: For the fourth element, you must decide whether [Defendant]’s acts were the proximate cause of damages that [Plaintiff] sustained. Put another way, you must decide, if [Defendant] had not [describe adverse employment action] [Plaintiff], whether these damages would have occurred.]

If you find that [Defendant]’s acts were the proximate cause of damages that [Plaintiff] sustained, you must determine the amount of damages.

[Insert damages instruction for §1981 from Pattern Instruction 4, supra.]

ANNOTATIONS AND COMMENTS

I. Causes of Action

Pattern Instruction 4.21 is intended to be used for retaliation claims under 42 U.S.C. §1981 (“§1981”), though the Committee recommends that district courts review the causation annotation prior to instructing a jury on §1981 retaliation.

Pattern Instruction 4.21 is not intended to be used for retaliation claims arising under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §2000e-3(a), the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §623(d); the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12203(a); and the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §215(a)(3). For retaliation claims under those statutes, please see Pattern Instruction 4.22, infra. Pattern Instruction 4.21 is also not intended to be used for retaliation claims arising under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §4301 et seq. (“USERRA”) or the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601 et seq. For USERRA retaliation claims, please see Pattern Instruction 4.19, supra. For FMLA retaliation claims, please see Pattern Instruction 4.15, supra. Finally, Pattern Instruction 4.21 is not intended to be used for Title VII retaliatory hostile work environment claims. For retaliatory hostile work environment claims, please see annotation I(B) to Pattern Instructions 4.6 and 4.7.

II. Elements and Defenses

A. Protected Activity

Section 1981 does not contain an explicit anti-retaliation provision, but the Eleventh Circuit has interpreted §1981 to provide for a retaliation claim based on an employee’s complaints of race discrimination. See, e.g., Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1412-13 (11th Cir. 1998) accord CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2008) (recognizing §1981 retaliation claim). The Eleventh Circuit analyzes claims brought under §1981 “using the burden-shifting scheme established for Title VII claims, since both statutes have the same proof requirements.” Jackson v. Geo Grp., Inc., 312 F. App’x 229, 233 (11th Cir. 2009) (per curiam). In applying Title VII’s framework to §1981 retaliation claims, the Eleventh Circuit has analyzed §1981 claims under Title VII’s opposition clause. Id. at 233-34 & n.8 (applying Title VII’s antiretaliation provision to §1981 retaliation claim and noting that the plaintiff only had an “opposition clause” claim). Pattern Instruction 4.21 includes an opposition clause claim.

B. Adverse Employment Action

Pattern Instruction 4.21 includes a charge on the definition of an adverse employment action, which is based on the Supreme Court’s decision in Burlington Northern &Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), which requires proof that the challenged retaliatory conduct is “materially adverse.” Id. at 68.

C. Third Party Reprisals

In Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011), the Supreme Court held that third-party reprisals are actionable under the anti-retaliation provision of Title VII. Id. at 868. The plaintiff in Thompson stated a claim for retaliation by alleging that he was intentionally terminated because his fiancée filed an EEOC charge of discrimination against their mutual employer. Id. at 870. In cases involving third party reprisals, the charge will need to be adapted.

D. Causation

In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that, based on the statutory language of the ADEA, a plaintiff must prove that “age was the ‘but-for’ cause of the employer’s adverse decision,” not merely a motivating factor in the decision. Id. at 176-77. The Court also rejected the mixed motive defense (also known as the same decision defense) in the context of the ADEA, noting that unlike under Title VII, a mixed motive defense was not incorporated into the ADEA. Id. at 173-75. In University of Texas Southwestern Medical Center v. Nassar, No. 12-484, 2013 WL 3155234 (U.S. June 24, 2013), the Supreme Court extended the rationale of Gross to Title VII retaliation claims “[g]iven the lack of any meaningful textual difference between the text in” Title VII’s anti-retaliation provision and the ADEA’s anti-retaliation provision. Nassar, 2013 WL 3155234, at *10. Therefore, “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in [42 U.S.C.] §2000e-2(m).” Id. at *14.

In First Amendment retaliation cases brought pursuant to 42 U.S.C. §1983, a “motivating factor” causation standard applies based on Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), in which the Supreme Court held that a plaintiff must show that protected First Amendment “conduct was a ‘substantial factor’ or to put it in other words, that it was a ‘motivating factor’” in the defendant’s challenged action. Id. at 287; see also Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007) (requiring that protected speech play “a substantial or motivating role in the adverse employment action”).

The Eleventh Circuit did not, prior to this publication, decide whether the rationale of Gross and Nassar extends to §1981 claims, including §1981 retaliation claims. See Annotation II(A) to Pattern Instruction 4.9, supra. The Committee recommends that district courts review this issue prior to instructing a jury on §1981 retaliation.

E. Pretext

Pattern Instruction 4.21 includes in brackets an optional charge discussing the inference of pretext. The basis for this charge is explained in further detail in the annotations following Pattern Instruction 4.5, supra.

III. Remedies

The remedies for Title VII retaliation claims match the remedies for Title VII disparate treatment claim. See 42 U.S.C. §§1981a, 2000e-5(e)(3)(B), (g)(1). Thus, the jury charges on damages in the corresponding disparate treatment instructions may be incorporated into the model retaliation instruction as appropriate.

IV. When the Case Involves Both Discrimination and Retaliation Claims

In some cases, a plaintiff will bring both discrimination and retaliation claims. In those cases, the court should charge separately all of the elements of a discrimination and retaliation claim except damages, then give a charge on damages that applies to both types of claims.

4 PJI 22 | RETALIATION - SECTION 1981, TITLE VII, ADEA, ADA, AND FLSA

In this case, [Plaintiff] claims that [Defendant] retaliated against [Plaintiff] because [he/she] took steps to enforce [his/her] lawful rights under [describe the act or statute involved, e.g., ADEA].

Laws that prohibit discrimination in the workplace also prohibit an employer from taking any retaliatory action against an employee because the employee has asserted rights or made complaints under those laws.

[Opposition clause claims only: An employee may make a discrimination complaint as a means to enforce what [he/she] believed in good faith to be [his/her] lawful rights. So, even if a complaint of discrimination against an employer is later found to be invalid or without merit, the employee cannot be penalized in retaliation for having made such a complaint if you find that the employee made the complaint as a means of seeking to enforce what the employee believed in good faith to be [his/her] lawful rights. To establish “good faith,” however, it is insufficient for [Plaintiff] merely to allege that [his/her] belief in this regard was honest and bona fide; the allegations and the record must also establish that the belief, though perhaps mistaken, was objectively reasonable.]

[Plaintiff] claims that [Defendant] [describe adverse employment action] because [Plaintiff] [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 each of the following facts by a preponderance of the evidence:

First: [Plaintiff] engaged in a protected activity;

Second: [Defendant] then took an adverse employment action;

Third: [Defendant] took the adverse employment action because of [Plaintiff]’s protected activity; and

Fourth: [Plaintiff] suffered damages because of the adverse employment action.

[In the verdict form that I will explain in a moment, you will be asked to answer questions about these factual issues.]

[For “participation clause” claims: For the first element, [Plaintiff] claims that [he/she] [describe participation clause activity]. If you find that [Plaintiff] [describe participation clause activity], that action is “protected activity.”]

[For “opposition clause” claims: For the first element, [Plaintiff] claims that [he/she] engaged in protected activity when [he/she] [describe opposition clause activity]. That action is “protected activity” if it was based on [Plaintiff]’s good-faith, reasonable belief that [Defendant]discriminated against [him/her/another employee] because of [protected trait]. [Name of plaintiff ] had a “good faith” belief if [he/she] honestly believed that [Defendant] discriminated against [him/her/another employee] because of [protected trait]. [Plaintiff] had a “reasonable” belief if a reasonable person would, under the circumstances, believe that [Defendant] discriminated against [him/her/another employee] because of [protected trait]. [Plaintiff] does not have to prove that [Defendant] actually discriminated against [him/her/another employee] because of [protected trait]. But [he/she] must prove that [he/she] had a good-faith, reasonable belief that [Defendant] did so.

For the second element, [Plaintiff] claims that [Defendant] took an adverse employment action against [him/her] when [Defendant] [describe adverse employment action]. You must decide whether [describe adverse 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 make or support a charge of discrimination. Put another way, if a reasonable employee would be less likely to complain about or oppose alleged discrimination 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 areasonable employee to make complaints about or oppose the alleged discrimination, it is not an adverse employment action.

For the third element, if you find that [Plaintiff] engaged in protected activity and that [Defendant] took an adverse employment action against [him/her], you must decide whether [Defendant] took that action because of [Plaintiff]’s protected activity. Put another way, you must decide whether [Plaintiff]’s protected activity was the main reason for [Defendant]’s decision.

To determine that [Defendant] took an adverse employment action because of [Plaintiff]’s protected activity, you must decide that [Defendant] would not have taken the action had [Plaintiff] not engaged in the 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 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]’sprotected 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 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 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, you must decide whether [Defendant]’s acts were the proximate cause of damages that [Plaintiff] sustained. Put another way, you must decide, if [Defendant] had not [describe adverse employment action] [Plaintiff], would these damages have occurred?]

If you find that [Defendant]’s acts were the proximate cause of damages that [Plaintiff] sustained, you must determine the amount ofdamages.

[Insert damages instruction based on substantive charge damages instruction. For claims under Title VII, please see Pattern Instruction 4.5, supra. For claims under Section 1981, please see Pattern Instruction 4.9, supra. For claims under the ADEA, please see Pattern Instruction 4.10, supra. For claims under the ADA, please see Pattern Instruction 4.11, supra. For claims under the FLSA, please see Pattern Instruction 4.10, supra, and the accompanying annotations].

ANNOTATIONS AND COMMENTS

I. Causes of Action

Pattern Instruction 4.22 is intended to be used for retaliation claims under 42 U.S.C. §1981 (“§1981”), Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §2000e-3(a), the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §623(d); the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12203; and the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §215(a)(3).

Pattern Instruction 4.22 is not intended to be used for retaliation claims arising under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §4301 et seq. (“USERRA”) or the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601 et seq. For USERRA retaliation claims, please see Pattern Instruction 4.19, supra. For FMLA retaliation claims, please see Pattern Instruction 4.15, supra.

II. Elements and Defenses

A. Participation Clause Claims v. Opposition Clause Claims

Title VII’s anti-retaliation provision contains two clauses: the “opposition clause” and the “participation clause.” 42 U.S.C. §2000e-3(a). The opposition clause “prohibits retaliation against an employee for opposing any practice made unlawful by Title VII.” Valdes v. Miami-Dade Coll., 463 F. App’x 843, 846 (11th Cir. 2012) (per curiam). The participation clause “protects activities which occur in conjunction with or after the filing of a formal charge with the EEOC.” EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). Due to differences between these two clauses, the pattern charge provides separate charges for each type of claim.

The Eleventh Circuit has held that “expansive protection is available” for participation clause activity. EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176-77 (citing Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969)). Therefore, an employee cannot be fired for anything written in an EEOC charge. Id. Thus, if employee engaged in participation clause activity, that activity is protected under Title VII, and no “good faith” inquiry is necessary.

In contrast, where a plaintiff’s retaliation claim arises from the opposition to an allegedly unlawful practice, “a plaintiff must show that he ‘had a good faith, reasonable belief that the employer was engaged in unlawful employment practices.’” Boyland v. Corr. Corp. of Am., 390 F. App’x 973, 975 (11th Cir. 2010) (per curiam). The plaintiff“need not prove the underlying claim of discrimination which led to [his] protest.” Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir. 1989). The plaintiff must show that he held a reasonable, good faith belief that the discrimination existed. Id. To demonstrate that he held a reasonable, good faith belief that discrimination occurred, the plaintiff must show not only that he subjectively believed that his employer’s behavior was discriminatory, “but also that his belief was objectively reasonable in light of the facts and record presented.” Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1213 (11th Cir. 2008) (quoting Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)). The protection afforded under the opposition clause extends to an employee who speaks out about sexual harassment, not only on her own initiative but also in answering questions during an employer’s investigation of a coworker’s complaints. Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 277 (2009).

The anti-retaliation provisions of the ADEA and the ADA track the language of Title VII’s anti-retaliation provision. See 29 U.S.C.§623(d) (prohibiting discrimination “because” employee opposed practices made unlawful by the ADEA or participated in activities in connection with an ADEA EEOC charge); 42 U.S.C. §12203 (a) (prohibiting discrimination “because” employee opposed practices made unlawful by the ADA or participated in activities in connection with an ADA EEOC charge). The anti-retaliationprovisions of the FLSA are similar to Title VII’s. 29 U.S.C. §215 (a)(3) (prohibiting discrimination “because” employee participated in activities in connection with an FLSA EEOC charge or took other specified actions); 29 U.S.C. §218c (prohibiting discrimination “because” employee took certain actions in objection to FLSA violations). The Eleventh Circuit has instructed that “the same elements are required to prove a claim of retaliation under Title VII or §1981.” Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d 1048, 1051 n.2 (11th Cir. 2020). Therefore, Pattern Instruction 4.22 includes alternative instructions for participation clause claims and opposition clause claims.

B. Adverse Employment Action

Pattern Instruction 4.22 includes a charge on the definition of an adverse employment action, which is based on the Supreme Court’s decision in Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), which requires proof that the challenged retaliatory conduct is materially adverse. Id. at 68. This definition of adverse employment action applies to retaliation claims under the ADA, ADEA, and FLSA. See, e.g., Burgos-Stefanelli v. Sec’y, U.S. Dept. of Homeland Sec., 410 F. App’x 243, 246 (11th Cir. 2011) (applying Burlington Northern to an ADA retaliation claim); Brown v. Northside Hosp., 311 F. App’x 217, 224 (11th Cir. 2009) (applying Burlington Northern to an ADEA retaliation claim); Darveau v. Detecon, Inc., 515 F.3d 334, 342 (4th Cir. 2008) (applying Burlington Northern to an FLSA retaliation claim).

C. Causation

In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that, based on the statutory language of the ADEA, a plaintiff must prove that “age was the ‘but-for’ cause of the employer’s adverse decision,” not merely a motivating factor in the decision. Id. at 176-77. The Court also rejected the mixed motive defense (also known as the same decision defense) in the context of the ADEA, noting that unlike under Title VII, a mixed motive defense was not incorporated into the ADEA. Id. at 173-75. Although the Eleventh Circuit has not, at the time of this publication, issued an opinion on this matter, the Committee believes that the rationale of Gross extends to retaliation claims under the ADEA, the ADA, and the FLSA because the statutory causation language is the same as or similar to the statutory causation language applicable to ADEA discrimination claims. See 29 U.S.C. §215 (a)(3) (FLSA); 29 U.S.C. §623(a), (d) (ADEA); 42 U.S.C. §12203(a) (ADA). For these reasons, Pattern Instruction 4.22 instructs that the adverse employment action must be “because of” the plaintiff’s protected activity.

In addition, Pattern Instruction 4.22 applies to Title VII retaliation claims. In University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 352 (2013), the Supreme Court extended the rationale of Gross to Title VII retaliation claims “[g]iven the lack of any meaningful textual difference between the text in” Title VII’s antiretaliation provision and the ADEA’s anti-retaliation provision. Therefore, “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in [42 U.S.C.] §2000e-2(m).” Id. at 360.

The Supreme Court recently altered the causation standard for claims under the federal-sector provision of the Age Discrimination in Employment Act, 29 U.S.C. §633a(a). Babb v. Wilkie, 140 S. Ct. 1168, 1174 (2020). The Eleventh Circuit extended that change to retaliation claims under the federal-sector provision of Title VII, 42 U.S.C. §2000e-16(a). Babb v. Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193, 1196 (11th Cir. 2021). The Supreme Court ruled that as to liability, a federal-sector plaintiff need not prove that the protected characteristic was a but-for cause of the ultimate personnel action (though a plaintiff must prove but-for causation to obtain certain remedies, including backpay and reinstatement). Babb, 140 S. Ct. at 1176-78. Instead, a plaintiff may show a violation of the statute by proving (i) that the protected characteristic was the but-for cause of differential treatment and (ii) the differential treatment tainted the ultimate personnel action. Id. As of the latest revision of this instruction, the law is not sufficiently settled to provide clear guidance on jury instructions for federal-sector cases. Still, courts should bear in mind the different causation requirements.

D. Pretext

Pattern Instruction 4.22 includes in brackets an optional charge discussing the inference of pretext. The basis for this charge is explained in further detail in the annotations following Pattern Instruction 4.5, supra.

III. Remedies

The remedies for ADA and ADEA retaliation claims match the remedies for disparate treatment claims under the ADA and ADEA, and the remedies for an FLSA retaliation claim are governed by the same damages measures as an ADEA retaliation claim, subject to the limitations discussed in the annotations following Pattern Instruction 4.10, supra. See 29 U.S.C. §216(b) (FLSA); 29 U.S.C. §626 (b) (ADEA); 42 U.S.C. §12117 (a) (ADA). Thus, the jury charges on damages in the corresponding disparate treatment instructions may be incorporated into the model retaliation instruction as appropriate.

IV. When the Case Involves Both Discrimination and Retaliation Claims

In some cases, a plaintiff will bring both discrimination and retaliation claims. In those cases, the court should charge all of the elements of a discrimination and retaliation claim except damages separately, then give a charge on damages that applies to both types of claims.

4 PJI 23 | MISCELLANEOUS ISSUES - CONSTRUCTIVE DISCHARGE

In this case, [Plaintiff] claims that [he/she] lost wages and benefits because [Defendant] “constructively discharged” [Plaintiff] from [his/her] job. Put another way, [Plaintiff] claims that [he/she] left [his/her] job because the hostile work environment made [his/her] working conditions intolerable.

[Defendant] denies that [he/she/it] constructively discharged [Plaintiff] and claims that [Plaintiff] voluntarily quit.

To prove constructive discharge, [Plaintiff] must prove that the hostile work environment made [his/her] working conditions so intolerable that a reasonable person in [his/her] position would have felt compelled to resign.

If you find that [Defendant] constructively discharged [Plaintiff], you may award [Plaintiff] lost wages and benefits caused by the constructive discharge. If you find that [Plaintiff] was not constructively discharged, you may not award [Plaintiff] lost wages and benefits due to the loss of employment.

ANNOTATIONS AND COMMENTS

A constructive discharge occurs where working conditions are so intolerable that a reasonable person would have felt compelled to resign. Akins v. Fulton County, 420 F.3d 1293, 1302 (11th Cir. 2005). In evaluating constructive discharge claims, the Eleventh Circuit does not consider the plaintiff’s subjective feelings. Instead, it employs an objective standard. Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2001) (per curiam).

For a discussion of when the Ellerth/Faragher affirmative defense may apply in a constructive discharge case, see Pennsylvania State Police v. Suders, 542 U.S. 129, 139-41 (2004).

When this instruction is used, it may be necessary to adapt the verdict form accordingly.

4 PJI 24 | MISCELLANEOUS ISSUES - EMPLOYEE OR INDEPENDENT CONTRACTOR

It is not always clear whether the law considers someone an “employee,” and it is not always clear who the law considers someone’s “employer.” Some people, for example, perform services for others while remaining self-employed as independent contractors.

In this case, you must decide: Was [Plaintiff] an employee of [Defendant], or was [Plaintiff] an independent contractor? You should answer this question in light of the economic realities of the entire relationship between the parties. There are a number of factors you must consider, based on all the evidence in the case:

(a) Who controls [Plaintiff]’s work? In an employer/employee relationship, the employer has the right to control the employee’s work, to set the means and manner in which the work is done, and set the hours of work. In contrast, an independent contractor generally must accomplish a certain work assignment within a desired time, but the details, means, and manner by which the contractor completes that assignment are determined by the independent contractor, normally using special skills necessary to perform that kind of work.

(b) How is [Plaintiff] paid? An employer usually pays an employee on a time worked, piecework, or commission basis, and an employer usually provides vacation or sick time, insurance, retirement, and other fringe benefits to the employee. An independent contractor is ordinarily paid an agreed or set amount, or according to an agreed formula, for a given task or job, and no benefits are provided.

(c) How much risk or opportunity does [Plaintiff] have? An independent contractor is generally one who has the opportunity to make a profit or faces a risk of taking a loss. But an employee is generally compensated at a predetermined rate, has no risk of loss, and has social security taxes paid by the employer.

(d) Who provides [Plaintiff]’s tools, equipment, and supplies? An independent contractor usually provides the tools, equipment, and supplies necessary to do the job – but an employee usually does not.

(e) How does [Plaintiff] offer services? Independent contractors generally offer their services to the public or others in a particular industry, have procured the necessary licenses for performing their services, and may have a business name or listing in the phone book. Employees ordinarily work for only one or just a few employers, and do not have business names or listings.

(f) What is the parties’ intent? The parties’ intent is always important. But the description the parties themselves give to their relationship is not controlling – substance governs over form.

You should consider all the circumstances surrounding the work relationship – no single factor determines the outcome. Nevertheless, the extent of the right to control the means and manner of the worker’s performance is the most important factor.

ANNOTATIONS AND COMMENTS

The central issue in determining employee/independent contractor status is the hiring party’s right to control the manner and means by which the work is accomplished. Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256, 1266 (11th Cir. 1997) (claim under the ADEA). Whether a person is an employee or an independent contractor is a question of fact for the jury. Id.; see also Morrison v. Amway Corp., 323 F.3d 920, 926-28 (11th Cir. 2003) (claim under the FMLA).

In cases under the Fair Labor Standards Act, the Court of Appeals has applied an “economic realities” test under which persons are considered employees if they “are dependent upon the business to which they render service.” Mednick v. Albert Enters., Inc., 508 F.2d 297, 299-300 (5th Cir. 1975); Villareal v. Woodham, 113 F.3d 202, 205 (11th Cir. 1997).

This instruction follows the Eleventh Circuit’s adoption of a standard that combines the “economic realities” test and the common law test. Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1234 (11th Cir. 2004) (claim under Title VII); see also Wolf v. Coca-Cola Co., 200 F.3d 1337, 1340 (11th Cir. 2000) (the term “employee” as used in the ERISA statute refers to the common law analysis).

4 PJI 25 | MISCELLANEOUS ISSUES - JOINT EMPLOYERS

It is not always clear whether the law considers someone an “employee,” and it is not always clear who the law considers someone’s “employer.” Some people, for example, perform services for others while remaining self-employed as independent contractors. Others are clearly employees. But it may not always be clear who is an employer of the employee. Sometimes an employee may have more than one employer at the same time.

So, in this case, you must decide: Was [Plaintiff] [Defendant]’s employee as well as an employee of [OtherEmployer]? You should answer this question in light of the economic realities of the entire relationship between the parties based on the evidence.

Consider all the following factors to the extent you decide that each applies to this case:

(a) the nature and degree of control over the employee and who exercises that control;

(b) the degree of supervision, direct or indirect, over the employee’s work and who exercises that supervision;

(c) who exercises the power to determine the employee’s pay rate or method of payment;

(d) who has the right, directly or indirectly, to hire, fire, or modify the employee’s employment conditions;

(e) who is responsible for preparing the payroll and paying wages;

(f) who made the investment in the equipment and facilities the employee uses;

(g) who has the opportunity for profit and loss;

(h) the employment’s permanence and exclusiveness;

(i) the degree of skill the job requires;

(j) the ownership of the property or facilities where the employee works; and

(k) the performance of a specialty job within the production line integral to the business.

Consideration of all the circumstances surrounding the work relationship is essential. No single factor is determinative. Nevertheless, the extent of the right to control the means and manner of the worker’s performance is the most important factor.

ANNOTATIONS AND COMMENTS

This instruction is derived from Aimable v. Long and Scott Farms, 20 F.3d 434 (11th Cir. 1994), which applies the economic realities test. See also Antenor v. D & S Farms, 88 F.3d 925 (11th Cir. 1996) and Charles v. Burton, 169 F.3d 1322 (11th Cir. 1999) (per curiam), which were “vertical” joint employment cases. For “horizontal” joint employment issues under the Fair Labor Standards Act, consideration of the regulations may be of assistance. See 29 C.F.R. §791.2(a).

Under the regulations:

Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as:

(1) Where there is an arrangement between the employers to share the employee’s services, as, for example, to interchange employees; or

(2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or

(3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.

29 C.F.R. §791.2(b) (footnotes omitted).

The Eleventh Circuit determined that the question of employer status under the ADEA intertwines jurisdiction and the merits and so must be resolved by the jury. Garcia v. Copenhaver, Bell & Assoc., 104 F.3d 1256, 1264 (11th Cir. 1997). Similarly, in Morrison v. Amway Corp., 323 F.3d 920, 930 (11th Cir. 2003), the court held that eligible employee status under the Family Medical Leave Act is not solely a jurisdictional issue. Rather, eligible employee status is to be decided by a jury or under Federal Rule of Civil Procedure 12(b)(6) or Federal Rule of Civil Procedure 56. Morrison, 323 F.3d at 930.

4 PJI 26 | MISCELLANEOUS ISSUES - ALTER EGO - CORPORATION AS ALTER EGO OF STOCKHOLDER

In this case, [Plaintiff] claims that [Corporation] was [Stockholder]’s mere instrument or tool – what the law calls an alter ego. Should you find that [Plaintiff] has proved this claim by a preponderance of the evidence, the law requires you to disregard the separate status of [Corporation] and hold [Stockholder] legally responsible for the corporation’s acts.

Under our free-enterprise economic system, the law permits – even encourages – people to form corporations as a way to attract stockholder investments. Stockholders can invest their money in corporate enterprises without risking individual liability for corporate acts and transactions. In return, society gets the benefit of jobs and other commercial activity that corporate businesses create. So, in most cases, the status of a corporation as a separate legal entity apart from its owners or stockholders must be respected and preserved.

But this rule is not absolute, and you can disregard the separate status of a corporation when a stockholder uses the corporation as a mere tool for the purpose of evading or violating a statutory or other legal duty, or for accomplishing some fraud or other illegal purpose.

To decide whether to treat [Corporation] as the alter ego of [Stockholder], you should consider:

(a) the purpose for which the stockholder formed or acquired the corporation;

(b) whether the corporation kept books and records, held regular director meetings, and observed other corporate legal formalities;

(c) whether the corporate funds were comingled with the stockholder’s funds;

(d) the activity or inactivity of others as officers or directors in the corporation’s business affairs; and

(e) any other factors the evidence disclosed tending to show that the corporation was or was not operated as an entity separate from its owner.

ANNOTATIONS AND COMMENTS

To prove that a defendant shareholder is the alter ego of a corporation, it must be shown that the shareholder disregarded the corporate entity and made it a mere instrumentality for the conducting of his own affairs and that such control was used to commit fraud or perpetrate the violation of a statutory or other legal duty. United Steelworkers of Am. v. Connors Steel Co., 855 F.2d 1499, 1506-07 (11th Cir. 1988). These requirements are typical under state law as well. See, e.g., Ex parte Thorn, 788 So. 2d 140 (Ala. 2000); U.S. v. Fidelity Capital Corp., 920 F.2d 827 (11th Cir. 1991) (applying Georgia law); Gasparini v. Pordomingo, 972 So. 2d 1053, 1055 (Fla. 2008) (per curiam).

4 PJI 27 | MISCELLANEOUS ISSUES - ALTER EGO - SUBSIDIARY AS ALTER EGO OF PARENT CORPORATION

In this case, [Plaintiff] claims that [Subsidiary] was the mere instrument or tool of its parent corporation, [Corporation] – what the law calls an alter ego. Should you find that [Plaintiff] has proved this claim by a preponderance of the evidence, the law requires you to disregard the separate status of [Subsidiary] and hold [Corporation] legally responsible for the subsidiary’s acts.

Under our free-enterprise economic system, the law permits – even encourages – people, and even other corporations, to form corporations as a way to attract stockholder investments. Parent corporations can invest their money in subsidiary enterprises without risking liability for the subsidiary’s acts and transactions. In return, society gets the benefit of jobs and other commercial activity that the subsidiary’s business creates. So, in most cases, the status of a subsidiary corporation as a separate legal entity apart from its parent corporation must be respected and preserved.

But this rule is not absolute, and you can disregard the separate status of a subsidiary corporation when the parent corporation uses the subsidiary as a mere tool for the purpose of evading or violating a statutory or other legal duty, or for accomplishing some fraud or other illegal purpose.

To decide whether to treat [Subsidiary] as the alter ego of [Corporation], you should consider:

(a) whether the parent caused the subsidiary’s incorporation;

(b) whether the parent and subsidiary have common stock ownership, or directors or officers in common;

(c) whether the business purpose or function of the subsidiary is separate and distinct from the parent;

(d) whether the two entities kept separate corporate books and records (even though they may have filed joint tax returns as required by law);

(e) whether the parent finances the subsidiary or pays the subsidiary’s salaries and other expenses;

(f) whether the subsidiary’s funds were comingled – or not mingled – with the parent’s funds; and

(g) any other factor the evidence disclosed tending to show that the subsidiary was or was not operated as an entity separate from its parent.

You should consider all these factors. No single factor is determinative.

ANNOTATIONS AND COMMENTS

To prove that a subsidiary should be treated as the alter ego of its parent corporation, it must be shown that the corporation so controls the operation of the subsidiary as to make it a mere instrumentality of the corporation and that such control is used for the purpose of committing fraud or perpetrating the violation of a statutory or other legal duty. United Steelworkers of Am. v. Connors Steel Co., 855 F.2d 1499, 1505-06 (11th Cir. 1988) (federal common law); United States v. Jon-T Chems., Inc., 768 F.2d 686, 691 (5th Cir. 1985).

The Eleventh Circuit has stated that, in order for a court to pierce the corporate veil, “a plaintiff must show (1) that the subsidiary is a mere instrumentality of the parent and (2) improper conduct.” Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1320 (11th Cir. 1998) (applying Florida law).

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PATTERN JURY INSTRUCTIONS1ST CIRCUIT COURT OF APPEALSPART 4ADVERSE EMPLOYMENT ACTION CLAIMS INSTRUCTIONS

4 PJI 1 | PUBLIC EMPLOYEE - FIRST AMENDMENT CLAIM - DISCHARGE OR FAILURE TO PROMOTE - FREE SPEECH ON MATTER OF PUBLIC CONCERN

ANNOTATIONS AND COMMENTS

I. Causes of Action

II. Elements and Defenses

A. “Under Color of State Law”

B. Whether Employee’s Speech is Protected

C. Adverse Employment Action

D. Causation

III. Individual Liability

IV. Governmental Liability

V. Special Questions

VI. Remedies

4 PJI 2 | PUBLIC EMPLOYEE - FIRST AMENDMENT CLAIM - DISCHARGE OR FAILURE TO PROMOTE - POLITICAL DISLOYALTY OR KEY EMPLOYEE

ANNOTATIONS AND COMMENTS

I. Causes of Action

II. Elements and Defenses

A. Adverse Employment Action

B. Causation

C. “Key Employee” Defense

D. Candidacy Defense

III. Remedies

4 PJI 3 | PUBLIC EMPLOYEE - EQUAL PROTECTION CLAIM - RACE/SEX DISCRIMINATION - HOSTILE WORK ENVIRONMENT - SUPERVISOR HARASSMENT (SEPARATE LIABILITY FOR PUBLIC BODY AND INDIVIDUAL SUPERVISORS)

ANNOTATIONS AND COMMENTS

I. Cause of Action

II. Elements

III. Special Liability Questions

Supervisor Liability.

Governmental Liability.

IV. Remedies

V. When the Case Involves Hostile Work Environment Claims Under More than One Statute

4 PJI 4 | PUBLIC EMPLOYEE - EQUAL PROTECTION CLAIM - RACE/SEX DISCRIMINATION - HOSTILE WORK ENVIRONMENT - CO-WORKER HARASSMENT (SEPARATE LIABILITY FOR PUBLIC BODY AND INDIVIDUAL SUPERVISORS)

ANNOTATIONS AND COMMENTS

I. Cause of Action

II. Elements

III. Special Liability Questions

IV. Remedies

V. When the Case Involves Hostile Work Environment Claims Under More than One Statute

4 PJI 5 | TITLE VII - CIVIL RIGHTS ACT - DISCRIMINATION - DISCHARGE OR FAILURE TO PROMOTE - INCLUDING "SAME DECISION" DEFENSE

ANNOTATIONS AND COMMENTS

I. Causes of Action

II. Elements and Defenses

A. “Adverse Employment Action”

B. Causation

C. Pretext (In General)

D. Pretext (Failure to Promote)

E. Cat’s Paw

F. The “Same Decision” Defense

III. Remedies

A. Compensatory and Punitive Damages

B. Back Pay

C. Front Pay

D. Attorney’s Fees

IV. When the Case Involves Disparate Treatment Claims Under More than One Statute

4 PJI 6 | TITLE VII - CIVIL RIGHTS ACT - WORKPLACE HARASSMENT BY SUPERVISOR - NO TANGIBLE EMPLOYMENT ACTION TAKEN (WITH AFFIRMATIVE DEFENSE BY EMPLOYER)

ANNOTATIONS AND COMMENTS

I. Cause of Action

A. Not For Tangible Employment Action Cases

B. Retaliatory Hostile Work Environment Cases

II. Elements and Defenses

A. Supervisor

B. “Because of” the Protected Trait

C. Affirmative Defense

III. Remedies

4 PJI 7 | TITLE VII - CIVIL RIGHTS ACT - WORKPLACE HARASSMENT BY CO-WORKER OR THIRD PARTY - NO TANGIBLE EMPLOYMENT ACTION TAKEN

ANNOTATIONS AND COMMENTS

I. Cause of Action

A. Not For Tangible Employment Action Cases

B. Retaliatory Hostile Work Environment Cases

II. Elements and Defenses

A. Supervisor

B. “Because of” the Protected Trait

C. Affirmative Defense

III. Remedies

4 PJI 8 | TITLE VII - CIVIL RIGHTS ACT - WORKPLACE HARASSMENT - UNWELCOME SEXUAL ADVANCES -TANGIBLE EMPLOYMENT ACTION TAKEN

ANNOTATIONS AND COMMENTS

I. Cause of Action

II. Elements

A. Elements

B. “Tangible Employment Action”

PATTERN JURY INSTRUCTIONS
1ST CIRCUIT COURT OF APPEALS
PART 4
ADVERSE EMPLOYMENT ACTION CLAIMS INSTRUCTIONS