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2 PJI 5.1 | RETALIATION¹

[Plaintiff] accuses [defendant]² of violating federal law by retaliating against [her/him] for engaging in protected activities, namely, for [specify protected activity]. [Specify protected activity, e.g., filing a discrimination complaint] is a “protected activity.”³ To succeed on this claim, [plaintiff] must prove⁴ by a preponderance of the evidence that

First, [defendant] took adverse action against [her/him]; and

Second, {Choose one of the following two bracketed phrases, depending on whether the case is a pretext or a mixed motive case (Note: a similar choice/modification must be made at the end of the instruction depending on whether the case is a pretext or a mixed motive case.):

⁵{were it not for [her/his] protected activity, [defendant] would not have taken adverse employment action against [her/him].}

⁶{[her/his] protected activity was a motivating factor in [defendant]’s decision⁷ to take adverse employment action against [her/him].}}


[Plaintiff] is not required to prove that [her/his] [protected activity] claim had merit in order to prove the retaliation claim, but [she/he] must have a good faith, reasonable belief that it did.<sup>8

9</sup>{An “adverse action” is one that would be materially adverse to a reasonable employee or job applicant, an action that could well dissuade a reasonable worker from making or supporting a charge of discrimination. This is an objective standard.¹⁰ “Material” means significant, as opposed to trivial. An adverse action by a supervisor is an action of the employer.¹¹}

{For a claim of retaliatory harassment by co-workers/third parties, insert the following: Alternatively, if you find that [defendant / defendant management] knew or should have known that co-workers and/or third parties were retaliating against [plaintiff] because of his/her protected activity in a way that would amount to material adverse action as I have defined it, and that [defendant / defendant management] failed to take prompt action to stop it, then you may find [defendant] liable for that retaliation.}¹²

{For a pretext case, insert the last 3 paragraphs of Instruction 1.1. For a mixed motive case, add the “motivating factor” definition from Instruction 1.2, as well as the last 4 paragraphs of that instruction.}

Footnotes

¹ This instruction is designed for retaliation cases. The Introductory Notes at the beginning of these instructions outline the statutory basis for a retaliation claim. Some of the statutes actually use the terminology “discrimina[tion]” on account of protected activities. See, e.g., 42 U.S.C. §§ 2000e-3(a) (Title VII), 12203 (ADA). In Thompson v. North American Stainless,LP, ___ U.S. ___, 131 S. Ct. 863, 868 (2011), the Supreme Court held that Title VII prohibits retaliation against a third party, but “decline[d] to identify a fixed class of relationships for which third-party reprisals are unlawful.” It also allowed the third party to sue if s/he had “an interest ‘arguably [sought] to be protected by the statutes.’” Id. at 870 (citation omitted).
² In Title VII cases, “the terms ‘employer’ and ‘employee’ are to be defined with reference to common law agency principles.” Delia v. Verizon Communications, Inc., __ F.3d __, 2011 WL 3688995, at *3 (1st Cir. Aug. 24, 2011) (internal quotes omitted). “[T]he principal guidepost” is “‘the common-law element of control [by the putative employer over the putative employee].’” Id. An instruction on this issue may be given when there is a dispute about whether the plaintiff is the defendant’s employee. see id. at *2-4; Lopez v. Massachusetts, 588 F.3d 69, 83 (1st Cir. 2009).
³ “[R]equesting an [ADA] accommodation is protected activity....” Wright v. CompUSA,352 F.3d 472, 478 (1st Cir. 2003). Speaking out about discrimination in answering questions during an employer’s internal investigation is protected activity. Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Tenn., 555 U.S. 271 (2009). Persistent efforts to help someone else initiate a complaint and urge human resources to act on it can be protected activity. Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 47 (1st Cir. 2010).
⁴ Evidence of retaliation can be direct or circumstantial. DeCaire v. Mukasey, 530 F.3d 1, 20 (1st Cir. 2008).
⁵ This bracketed language should be used in a pretext case. see Instruction 1.1.
⁶ This bracketed language should be used in a mixed motive case. see Instruction 1.2. In a retaliation case characterized by the First Circuit as “mixed motive,” the court Seemed to use both standards (“not enough to trigger an inference of causation” and plaintiff “failed... to show that, but for the defendants’ animus towards him, the recommendation would have been rejected.” Kearney v. Town of Wareham,316 F.3d 18, 23 (1st Cir. 2002)). However, it does not appear to be an intentional change in the mixed motive standards. Note that in a mixed motive retaliation case in the First Circuit, Price-Waterhouse controls without any alteration by the 1991 amendments to Title VII and there is, therefore, no relief for a plaintiff if a defendant proves it would have taken the same action regardless. Tanca v. Nordberg,98 F.3d 680, 684 (1st Cir. 1996) (Title VII retaliation).
⁷ In Staub v. Proctor Hosp., ___ U.S. ___, 131 S. Ct. 1186 (2011), the Supreme Court dealt with so-called cat’s paw liability under the Uniformed Services Employment and Reemployment Rights Act ― according to the Court, “very similar to Title VII” in its use of the phrase “a motivating factor in the employer’s action.” The 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” even if the supervisor who ultimately took the adverse action did not share the discriminatory animus. Id. at 1194 (emphasis in original). The principle seems applicable generally to employment discrimination cases. The Court expressed no view about liability “if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.” Id. at n.4.
⁸ Morales-Cruz v. U. of P.R.,___ F.3d ___, 2012 WL 1172064 (1st Cir. Apr. 10, 2012); Fantini v. Salem State Coll.,557 F.3d 22, 32 (1st Cir. 2009). There is, however, some confusion in the case law on this “good faith, reasonable belief” point. The Supreme Court in Burlington Northern stated that its standard “does not require a reviewing court or jury to consider ‘the nature of the discrimination that led to the filing of the charge.’ Rather, the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint.” Burlington N. & Santa Fe Ry. Co. v. White,548 U.S. 53, 69 (2006) (internal citation omitted) (emphasis in original). see also Crawford v. Metropolitan Gov’t of Nashville & Davidson County, Tenn., 551 U.S. 271 (2009) (finding that the protection of the “opposition clause” of the anti-retaliation provision of Title VII extended to employee who spoke out about sexual harassment allegedly directed at her, not on her own initiative, but in answering questions during employer’s investigation of employee’s co-worker’s complaints of sexual harassment).
⁹ This bracketed paragraph may be used in cases where there is a dispute about whether the action that the defendant allegedly took against the plaintiff constituted an adverse action. The definitional language comes from Burlington Northern & Santa Fe Railway Co. v. White,548 U.S. 53 (2006), where the Court announced that “Title VII’s substantive provision and its anti-retaliation provision are not coterminous.” Id. at 67. Although this question, if it arises, is one for the jury, see Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 36 (1st Cir. 2001) (ADEA), in most cases the dispute will be about whether the defendant’s challenged conduct was motivated by a retaliatory purpose, not whether it amounted to an adverse action. In Burlington Northern, the Supreme Court held that Title VII’s antiretaliation provision is in fact broader than Title VII’s substantive provision, for it “is not limited to discriminatory actions that affect the terms and conditions of employment.” Burlington N., 548 U.S. at 64. “An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.” Id. at 63 (emphasis in original); see also Dixon v. Int’l Bhd. of Police Officers,504 F.3d 73, 82 (1st Cir. 2007) (“Title VII... cover[s] retaliation claims against unions which cause harm in the workplace and outside of it.”). If there is no dispute about whether the alleged conduct, if proven, would constitute an adverse action, the bracketed paragraph may be deleted and the generic references to “adverse action” may be replaced by a brief description of the adverse action defendant allegedly took. Former employees are also protected against retaliation. Robinson v. Shell Oil Co.,519 U.S. 337 (1997).
¹⁰ In Morales-Vallellanes v. Potter,605 F.3d 27, 37-38 (1st Cir. 2010), the court held that a “temporary rotation of [plaintiff’s] preferred distribution duties to a female [co-worker] fails to qualify as an adverse employment action.” In Booker v. Mass. Dep’t of Public Health,612 F.3d 34, 44 (1st Cir. 2010), the court described the Burlington standard as “an objective one, based on the vantage of a reasonable employee.” Although the court did not reverse in Booker, it was uncomfortable with the charge given in that case and “recommend[ed] that instructions on retaliation hew more closely to Burlington and Dixon.” Id. Dixon requires that a plaintiff show that “(1) she engaged in protected activity; (2) she suffered some materially adverse action; and (3) the adverse action was causally linked to her protected activity.” Dixon v. Int’l Bhd. of Police Officers,504 F.3d 73, 81 (1st Cir. 2007).
¹¹ In Foley v. Commonwealth Electric Co., 312 F.3d 517, 521 (1st Cir. 2002), the court states that “this instruction optimally should have been included in the charge.”
¹² Rather than include a separate retaliatory hostile environment charge, this retaliation charge may be amplified to make it clear that a retaliatory hostile environment can qualify as an “adverse action” in some circumstances. see Burlington N. & Santa Fe Rwy. Co. v. White,548 U.S. 53 (2006). For discussion of retaliatory hostile work environment liability, see Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 345-47 (6th Cir. 2008).