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Pattern Jury Instructions
3rd Circuit Court of Appeals

I

1 PJI 1 | INTRODUCTION; ROLE OF JURY

Now that you have been sworn, I have the following preliminary instructions for your guidance as jurors in this case.

You will hear the evidence, decide what the facts are, and then apply those facts to the law that I will give to you.

You and only you will be the judges of the facts. You will have to decide what happened. I play no part in judging the facts. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be. My role is to be the judge of the law. I make whatever legal decisions have to be made during the course of the trial, and I will explain to you the legal principles that must guide you in your decisions. You must follow that law whether you agree with it or not.

COMMENT This instruction is derived from the Bench Book for United States District Court Judges (Federal Judicial Center), and tracks similar pattern instructions in the First Circuit (Criminal 1.01) and Eleventh Circuit (2.1). See also Fifth Circuit 1.1. For other versions of this instruction, see Sixth Circuit (Criminal) 1.02; Eighth Circuit 1.01.

The instruction can be modified to be given at the end of the case when the court is about to give final instructions on the applicable law. See, e.g., Seventh Circuit (Criminal) 1.01:
Members of the jury, you have seen and heard all the evidence and the arguments of the attorneys. Now I will instruct you on the law. You have two duties as a jury. Your first duty is to decide the facts from the evidence in the case. This is your job, and yours alone. Your second duty is to apply the law that I give you to the facts. You must follow these instructions, even if you disagree with them. Each of the instructions is important, and you must follow all of them. Perform these duties fairly and impartially. Do not allow sympathy, prejudice, fear, or public opinion to influence you. [You should not be influenced by any person's race, color, religion, national ancestry, or sex.] Nothing I say now, and nothing I said or did during the trial, is meant to indicate any opinion on my part about what the facts are or about what your verdict should be.
See also Ninth Circuit 1.1A - 1.1C (instructions on duty of jurors).

(Last Updated October 2017)

1 PJI 2 | DESCRIPTION OF CASE; SUMMARY OF APPLICABLE LAW

In this case, [plaintiff] claims that [describe claims]; [defendant] denies those claims [and also contends that [describe counterclaims or affirmative defenses]]. I will give you detailed instructions on the law at the end of the case, and those instructions will control your deliberations and decision. But in order to help you follow the evidence, I will now give you a brief summary of the elements that [plaintiff] must prove to make [his/her/its] case:

[Summarize elements of the applicable cause of action].

COMMENT Referring to the parties by their names, rather than solely as “Plaintiff” and “Defendant,” can improve jurors’ comprehension. In these instructions, bracketed references to “[plaintiff]” or “[defendant]” indicate places where the name of the party should be inserted.

This instruction is derived from the pattern instruction used by United States District Courts in Camden. It is similar to pattern instructions in the Eighth Circuit (1.01) and the Ninth Circuit (1.2).

This preliminary instruction concerning the elements in the case can be used together with the applicable substantive instruction for a particular cause of action. It is not necessary at the outset, however, to give a detailed instruction as to the applicable elements, especially in a complex case. But a brief description of the claims, defenses and counterclaims, if any, is likely to aid jury comprehension.

This instruction can be modified to be given at the beginning of voir dire, or in light of what was given at the beginning of voir dire.

(Last Updated October 2017)

1 PJI 3 | CONDUCT OF JURY

Now, a few words about your conduct as jurors.

First, I instruct you that during the trial and until you have heard all of the evidence and retired to the jury room to deliberate, you are not to discuss the case with anyone, not even among yourselves. If anyone should try to talk to you about the case, including a fellow juror, bring it to my attention promptly. There are good reasons for this ban on discussions, the most important being the need for you to keep an open mind throughout the presentation of evidence. I know that many of you use cell phones, smart phones [like Blackberries and iPhones], and other portable electronic devices; laptops, netbooks, and other computers both portable and fixed; and other tools of technology, to access the internet and to communicate with others. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate orally with anyone about the case on your cell phone, smart phone, or portable or fixed computer or device of any kind; or use these devices to communicate electronically by messages or postings of any kind including e-mail, instant messages, text messages, text or instant messaging services [such as Twitter], or through any blog, website, internet chat room, or by way of any other social networking websites or services [including Facebook, MySpace, LinkedIn, and YouTube].

If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you, either. [That is why you are asked to wear your juror tags. It shows that you are someone who is not to be approached in any way.]

Second, do not read or listen to anything related to this case that is not admitted into evidence. By that I mean, if there is a newspaper article or radio or television report relating to this case, do not read the article or watch or listen to the report. In addition, do not try to do any independent research or investigation on your own on matters relating to the case or this type of case. Do not do any research on the internet, for example. You are to decide the case upon the evidence presented at trial. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

Again, do not reach any conclusion on the claims [or defenses] until all of the evidence is in. Keep an open mind until you start your deliberations at the end of the case.

[Finally, if any member of the jury has a friend or family member who is in attendance at this public trial, that visitor must first register with my Clerk because special rules will govern their attendance. You may not discuss any aspect of this trial with the visitor, nor may you permit the visitor to discuss it with you.]

COMMENT This instruction is adapted from the pattern instruction used by United States District Courts in Delaware. For variations on this instruction, see First Circuit (Criminal) 1.07; Eighth Circuit 1.05; Ninth Circuit 1.12. See also Montana 1.4 (concluding the instruction with a warning that “[f]ailure to observe these precautions might require the retrial of this case, which would result in a long delay, considerable expense to the courts and the parties and a waste of your time and effort.”). Portions of the instruction are drawn from Proposed Model Jury Instructions on the Use of Electronic Technology to Conduct Research on or Communicate about a Case, prepared by the Judicial Conference Committee on Court Administration and Case Management (CACM) in December 2009. See United States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011) (“We enthusiastically endorse [the CACM] instructions and strongly encourage district courts to routinely incorporate them or similar language into their own instructions.”). CACM released an updated version of the model instructions in June 2012 (the updated model is available at http://news.uscourts.gov/revised-jury-instructionshope-deter-juror-use-social-media-during-trial). Obviously, the relevant technologies will evolve over time; users of these instructions should insert a list of current examples in the appropriate place in the instructions.

The court should give this instruction on jury conduct after the jurors are sworn and before opening statements. Depending on the circumstances, it may be useful to give this instruction, or some part of it, during the trial as well. See Wright & Miller, Federal Practice and Procedure § 486 (suggesting that there may be occasion during the trial and at the close of the evidence to remind the jury about how it should conduct itself).

The Committee considered whether to delete the instruction that jurors are not to talk among themselves about the case until deliberations. The Committee notes that Arizona permits pre-deliberation discussions among jurors. But the Third Circuit has declared as follows:
“It is fundamental that every litigant who is entitled to trial by jury is entitled to an impartial jury, free to the furthest extent practicable from extraneous influences that may subvert the fact-finding process.” Waldorf v. Shuta, 3 F.3d 705, 709 (3d Cir. 1993). Partly to ensure that this right is upheld, “it [has been] a generally accepted principle of trial administration that jurors must not engage in discussions of a case before they have heard both the evidence and the court’s legal instructions and have begun formally deliberating as a collective body.” [United States v.] Resko, 3 F.3d [684] at 688 [(3d Cir. 1993)].
United States v. Bertoli, 40 F.3d 1384, 1393 (3d Cir. 1994).

Premature deliberations present a number of concerns, the most important being that jurors who discuss the case among themselves may harden their positions before all of the evidence is presented and the jury is instructed. Moreover, “[o]nce a juror has expressed views on a particular issue, that juror has a ‘stake’ in the expressed views and may give undue weight to additional evidence that supports, rather than undercuts, his or her view.” Id. The Committee therefore concluded that the court should instruct the jurors to refrain from discussing the case among themselves before deliberations.

(Last Updated October 2017)

1 PJI 4 | BENCH CONFERENCES

During the trial it may be necessary for me to talk with the lawyers out of your hearing by having a bench conference. If that happens, please be patient.

We are not trying to keep important information from you. These conferences are necessary for me to fulfill my responsibility, which is to be sure that evidence is presented to you correctly under the law.

We will, of course, do what we can to keep the number and length of these conferences to a minimum. [While we meet, I will invite you to stand up and stretch and take a short break or perhaps even call a recess if it is a lengthy issue, and permit you to go downstairs for a break.]

I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

COMMENT This instruction is derived from First Circuit (Criminal) 1.05; 8th Circuit 1.03; and former Ninth Circuit 2.2. Cf. Ninth Circuit 1.18. For a shortened version of this instruction, see Fifth Circuit 2.7:
At times during the trial it may be necessary for me to talk with the lawyers here at the bench out of your hearing, or by calling a recess. We meet because often during a trial something comes up that doesn't involve the jury.

(Last Updated October 2017)

1 PJI 5 | EVIDENCE

The evidence from which you are to find the facts consists of the following:

1. The testimony of the witnesses;

2. Documents and other things received as exhibits;

3. Any facts that are stipulated -- that is, formally agreed to by the parties; and

[4. Any facts that are judicially noticed -- that is, facts I say you must accept as true even without other evidence.]


The following things are not evidence:

1. Statements, arguments, and questions of the lawyers for the parties in this case;

2. Objections by lawyers.

3. Any testimony I tell you to disregard; and

4. Anything you may see or hear about this case outside the courtroom.


You must make your decision based only on the evidence that you see and hear in court. Do not let rumors, suspicions, or anything else that you may see or hear outside of court influence your decision in any way.

You should use your common sense in weighing the evidence. Consider it in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.

There are rules that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence, and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. This simply means that the lawyer is requesting that I make a decision on a particular rule of evidence. You should not be influenced by the fact that an objection is made. Objections to questions are not evidence. Lawyers have an obligation to their clients to make objections when they believe that evidence being offered is improper under the rules of evidence. You should not be influenced by the objection or by the court’s ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the answer like any other. If you are instructed that some item of evidence is received for a limited purpose only, you must follow that instruction.

Also, certain testimony or other evidence may be ordered struck from the record and you will be instructed to disregard this evidence. Do not consider any testimony or other evidence that gets struck or excluded. Do not speculate about what a witness might have said or what an exhibit might have shown.


COMMENT This instruction is derived from the Bench Book for United States District Judges (Section 6.05); First Circuit (Criminal) 1.05; Eighth Circuit 1.02; and former Ninth Circuit 1.4. Cf. Ninth Circuit 1.7. The third and fourth paragraphs of the instruction are specifically derived from the instruction used by District Judges in Delaware.

This instruction is to be given at the outset of the case, as well as, or in place of, an instruction at the end of the case. The instruction can be given at the end of the case simply by changing the verbs to the past tense.

Instructions concerning the evidence can sometimes help to mitigate the effects of testimony to which an objection is sustained. See Leonard v. Stemtech Int’l Inc, 834 F.3d 376, 400 n.24 (3d Cir. 2016) (noting the presumption that jurors follow instructions and observing that “the District Court instructed the jury at the outset of trial that it should disregard evidence to which an objection was lodged when the objection is sustained”).

(Last Updated October 2017)

1 PJI 6 | DIRECT AND CIRCUMSTANTIAL EVIDENCE

Option 1:

Do not be concerned about whether evidence is "direct evidence" or "circumstantial evidence." You should consider and weigh all of the evidence that is presented to you. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.

Option 2:

There are two types of evidence that you may use in reaching your verdict. One type of evidence is called “direct evidence.” An example of "direct evidence" is when a witness testifies about something that the witness knows through his own senses — something the witness has seen, felt, touched or heard or did. If a witness testified that he saw it raining outside, and you believed him, that would be direct evidence that it was raining. Another form of direct evidence is an exhibit where the fact to be proved is its existence or current condition.

The other type of evidence is circumstantial evidence. "Circumstantial evidence" is proof of one or more facts from which you could find another fact. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining.

You should consider both kinds of evidence that are presented to you. The law makes no distinction in the weight to be given to either direct or circumstantial evidence. You are to decide how much weight to give any evidence.



COMMENT Option 1 is derived from Fifth Circuit (Criminal) 1.07 (Alternative A). It can be used by those judges who do not wish to say anything about the distinction between direct and circumstantial evidence, but yet might be concerned that jurors would have preconceived notions about these terms.

Option 2 is derived from former Ninth Circuit 3.6. Cf. Ninth Circuit 1.9. The instruction does not attempt to provide a definition of “direct” evidence. The definitions given in some instructions simply repeat the word “direct”. Other instructions on direct evidence are underinclusive, as they refer only to witness testimony, whereas an exhibit can be direct evidence of a fact. The example given in the instruction should be sufficient to give jurors a clear idea of “direct” evidence.

(Last Updated October 2017)

1 PJI 7 | CREDIBILITY OF WITNESSES

In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You are the sole judges of the credibility of the witnesses. “Credibility” means whether a witness is worthy of belief. You may believe everything a witness says or only part of it or none of it. In deciding what to believe, you may consider a number of factors, including the following:

(1) the opportunity and ability of the witness to see or hear or know the things the witness testifies to;

(2) the quality of the witness's understanding and memory;

(3) the witness's manner while testifying;

(4) whether the witness has an interest in the outcome of the case or any motive, bias or prejudice;

(5) whether the witness is contradicted by anything the witness said or wrote before trial or by other evidence;

(6) how reasonable the witness's testimony is when considered in the light of other evidence that you believe; and

(7) any other factors that bear on believability.


[The weight of the evidence to prove a fact does not necessarily depend on the number of witnesses who testify. What is more important is how believable the witnesses were, and how much weight you think their testimony deserves.]

COMMENT This instruction is derived from First Circuit (Criminal) 1.06 and former Ninth Circuit 1.8. Cf. Ninth Circuit 1.11. For variations, see Sixth Circuit (Criminal) 1.07; Seventh Circuit (Criminal) 1.03.

This instruction can be given both at the beginning of the case and at the close of the evidence. For an example of an instruction given at the end of the case, see Eighth Circuit 3.03.

The bracketed material at the end of the instruction may be given usefully at the end of a case in which witnesses on one side outnumber the other. See Instruction 3.2 (Number of Witnesses).

(Last Updated October 2017)

1 PJI 8 | JURY QUESTIONS FOR WITNESSES

Option 1:

Only the lawyers and I are allowed to ask questions of witnesses. You are not permitted to ask questions of witnesses.

Option 2:

You will have the opportunity to ask questions of the witnesses in writing. When a witness has been examined and cross-examined by counsel, and after I ask any clarifying questions of the witness, I will ask whether any juror has any further clarifying question for the witness.

If so, you will write your question on a piece of paper, and hand it to my Deputy Clerk. Do not discuss your question with any other juror. I will review your question with counsel at sidebar and determine whether the question is appropriate under the rules of evidence. If so, I will ask your question, though I might put it in my own words. If the question is not permitted by the rules of evidence, it will not be asked, and you should not draw any conclusions about the fact that your question was not asked. Following your questions, if any, the attorneys may ask additional questions. If I do ask your question you should not give the answer to it any greater weight than you would give to any other testimony.



COMMENT The trial judge has discretion to permit or to disallow questions from the jury. Option 1 is for judges who want explicitly to disallow jury questions. See Ninth Circuit 1.15 (comment) (“Whether to allow jurors to ask questions is a subject debated among judges.”). Option 2 (derived from the instruction given by District Judges in Camden) is for judges who want to tell jurors explicitly that they may submit questions to be asked of witnesses. Some judges, however, may not want to give an explicit instruction allowing or disallowing jury questions, but may wish instead to wait and see if jurors inquire about asking questions, and then rule on whether to allow questions.

In United States v. Hernandez, 176 F.3d 719, 723 (3d Cir. 1999), the Third Circuit “approved of the practice [of permitting juror questions] so long as it is done in a manner that insures the fairness of the proceedings, the primacy of the court's stewardship, and the rights of the accused.” The court in Hernandez also held that, if the trial judge allows jury questions, the court should follow a procedure for questions to prevent jury misconduct. Id. at 726 (warning that “the judge should ask any juror-generated questions, and he or she should do so only after allowing attorneys to raise any objection out of the hearing of the jury”). The court also noted that “properly structured juror questioning in a civil trial poses even fewer” risks than in a criminal trial. Id.

The Third Circuit recognized in Hernandez that there are arguments for and against allowing jurors to submit questions for witnesses. The best argument in favor of jury questioning is that it helps jurors clarify factual confusions and understand as much of the facts and issues as possible so that they can reach an appropriate verdict. On the other hand, allowing jurors to ask questions may risk turning them into advocates and compromising their neutrality. See United States v. Bush, 47 F.3d 511 (2d Cir. 1995). In this regard, it is not appropriate to allow jurors to ask questions that appear to suggest a view about the merits of the case.

(Last Updated October 2017)

1 PJI 9 | NOTE-TAKING BY JURORS

Option 1:

If you wish, you may take notes during the presentation of evidence, the summations of attorneys at the conclusion of the evidence, and during my instructions to you on the law. My Courtroom deputy will arrange for pens, pencils, and paper. Remember that your notes are for your own personal use -- they are not to be given or read to anyone else.

As you see, we have a court reporter here who will be transcribing the testimony during the course of the trial. But you should not assume that the transcripts will be available for your review during your deliberations. Nor should you consider notes that you or fellow jurors may take as a kind of written transcript. Instead, as you listen to the testimony, keep in mind that you will be relying on your recollection of that testimony during your deliberations. Here are some other specific points to keep in mind about note taking:

1. Note-taking is permitted, not required. Each of you may take notes. No one is required to take notes.

2. Be brief. Do not try to summarize all of the testimony. Notes are for the purpose of refreshing memory. They are particularly helpful when dealing with measurements, times, distances, identities, and relationships. Overuse of note-taking may be distracting. You must determine the credibility of witnesses; so you must observe the demeanor and appearance of each person on the witness stand. Note-taking must not distract you from that task. If you wish to make a note, you need not sacrifice the opportunity to make important observations. You may make your note after having made an observation.

3. Do not use your notes, or any other juror’s notes, as authority to persuade fellow jurors. In your deliberations, give no more and no less weight to the views of a fellow juror just because that juror did or did not take notes. As I mentioned earlier, your notes are not official transcripts. They are not evidence, and they are by no means a complete outline of the proceedings or a list of the highlights in the trial. They are valuable, if at all, only as a way to refresh your memory. Your memory is what you should be relying on when it comes time to deliberate and render your verdict in this case. You therefore are not to use your notes as authority to persuade fellow jurors of what the evidence was during the trial. Notes are not to be used in place of the evidence.

4. Do not take your notes away from court. I repeat, at the end of each day, please leave your notes in the jury room. [Describe logistics of storing and securing notes, for example: “If you do take notes, take them with you each time you leave the courtroom and please leave them in the jury room when you leave at night. At the conclusion of the case, after you have used your notes in deliberations, a court officer will collect and destroy them, to protect the secrecy of your deliberations.”]


Option 2:

As you see, we have a court reporter here who will be transcribing the testimony during the course of the trial. But you should not assume that the transcripts will be available for your review during your deliberations. You must pay close attention to the testimony as it is given.

You may not take notes during the course of the trial. There are several reasons for this. It is difficult to take notes and, at the same time, pay attention to what a witness is saying and the witness’s manner while testifying. One of the reasons for having a number of persons on the Jury is to gain the advantage of your individual and collective memories so that you can then deliberate together at the end of the trial and reach agreement on the facts. While some of you might feel comfortable taking notes, other members of the Jury may not feel as comfortable and may not wish to do so. Notes might be given too much weight over memories, especially the memories of those who do not take notes. So, for those reasons, I ask that you not take notes during the trial.



COMMENT Option 1 is derived from the instruction used by District Courts in Delaware. Slight variations are found in First Circuit (Criminal) 1.08 and Eleventh Circuit (Criminal) 3.1. For other variations, see Fifth Circuit 2.21 and Eighth Circuit 1.04.

Option 2 is derived from Eleventh Circuit (Criminal) 3.2. For a slight variation, see Fifth Circuit (Criminal) 1.02.

In United States v. Maclean, 578 F.2d 64 (3d Cir. 1978), the court held that the trial judge has discretion to allow jurors to take notes. It stated that if note-taking is permitted, jurors must be instructed that the notes are only aids to memory, that they are not conclusive, and they are not to be given precedence over a juror’s independent recollection of the facts. See also American Bar Association, Civil Trial Practice Standards (2007) (court ordinarily should permit jurors to take notes, but should also give a cautionary instruction that notetaking is not required and that notes are not to be used in place of the evidence).

The instruction notes that the jurors should not assume that a transcript of testimony will be available to them during deliberations. It does not say absolutely that transcripts will not be provided. This instruction is in accordance with United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994), where the court held that when the trial court decides to provide testimony to the jury during deliberations, it has discretion to do so by providing a transcript. See generally Comment 3.3.

(Last Updated October 2017)

1 PJI 10 | PREPONDERANCE OF THE EVIDENCE

This is a civil case. [Plaintiff] is the party [who/that] brought this lawsuit. [Defendant] is the party against [whom/which] the lawsuit was filed. [Plaintiff] has the burden of proving [his/her/its] case by what is called the preponderance of the evidence. That means [plaintiff] has to prove to you, in light of all the evidence, that what [he/she/it] claims is more likely so than not so. To say it differently: if you were to put the evidence favorable to [plaintiff] and the evidence favorable to [defendant] on opposite sides of the scales, [plaintiff] would have to make the scales tip somewhat on [his/her/its] side. If [plaintiff] fails to meet this burden, the verdict must be for [defendant]. If you find after considering all the evidence that a claim or fact is more likely so than not so, then the claim or fact has been proved by a preponderance of the evidence.

In determining whether any fact has been proved by a preponderance of evidence in the case, you may, unless otherwise instructed, consider the testimony of all witnesses, regardless of who may have called them, and all exhibits received in evidence, regardless of who may have produced them.

[On certain issues, called affirmative defenses, [defendant] has the burden of proving the elements of the defense by a preponderance of the evidence. I will instruct you on the facts that will be necessary for you to find on this affirmative defense. An affirmative defense is proven if you find, after considering all evidence in the case, that [defendant] has succeeded in proving that the required facts are more likely so than not so.]

[[Defendant] has also brought claims for relief against [plaintiff], called counterclaims. On these claims, [defendant] has the same burden of proof as has [plaintiff] on [his/her/its] claims.]

You may have heard of the term “proof beyond a reasonable doubt.” That is a stricter standard of proof and it applies only to criminal cases. It does not apply in civil cases such as this. So you should put it out of your mind.

COMMENT This instruction is derived from the following sources: pattern instruction used by District Judges in Camden; pattern instruction used by District Judges in Delaware; Fifth Circuit 3.1 (second paragraph); and Eighth Circuit 3.04.

It is advisable to give this instruction at both the beginning of the case and at the close of the evidence.

It is important that the jury be made aware that the preponderance standard requires an analysis and weighing of all of the evidence presented by both sides. See United States v. Montague, 40 F.3d 1251, 1254-55 (D.C. Cir. 1994):
Often, under a preponderance-of-the-evidence standard, it is assumed that the trier of fact piles up the evidence arguably on the defendant’s side and determines which pile is greater.... In fact, a more accurate notion of the preponderance-of-the-evidence standard is “evidence which as a whole shows that the fact sought to be proved is more probable than not.”

(Last Updated October 2017)

1 PJI 11 | CLEAR AND CONVINCING EVIDENCE

Clear and convincing evidence is evidence that produces in your mind a firm belief or conviction that the allegations sought to be proved by the evidence are true. Clear and convincing evidence involves a higher degree of persuasion than is necessary to meet the preponderance of the evidence standard. But it does not require proof beyond a reasonable doubt, the standard applied in criminal cases.
COMMENT This instruction is derived from Fifth Circuit 2.14. For a variation, see Ninth Circuit 1.4.

The clear and convincing evidence standard has been described as an intermediate standard of proof. See Cruzan v. Missouri Dep’t of Health, 497 U.S. 261, 285 n.11 (1990). It is used to protect especially important interests in a limited number of federal cases.

(Last Updated October 2017)

1 PJI 12 | DESCRIPTION OF TRIAL PROCEEDINGS

The trial will proceed in the following manner:

First, attorney(s) for [plaintiff(s)] will make an opening statement to you. Next, attorney(s) for [defendant(s)] may make an opening statement. What is said in the opening statements is not evidence, but is simply an outline to help you understand what each party expects the evidence to show. [A party is not required to make an opening statement.]

After [Before] the attorneys have made their opening statements, [I will instruct you on the applicable law and] then each party is given an opportunity to present its evidence.

[Plaintiff] goes first because [plaintiff(s)] [has/have] the burden of proof. [Plaintiff(s)] will present witnesses whom counsel for [defendant(s)] may cross-examine, and [plaintiff(s)] may also present evidence. Following [plaintiffs'] case, [defendant(s)] may present evidence. Counsel for [plaintiff(s)] may cross-examine witnesses for the defense. [After the parties’ main case is presented, they may be permitted to present what is called rebuttal evidence.]

After all the evidence has been presented, [I will instruct you on the law and then] the attorneys will present to you closing arguments to summarize and interpret the evidence in a way that is helpful to their clients' positions. As with opening statements, closing arguments are not evidence. [Once the closing arguments are completed, I will then instruct you on the law.] After that you will retire to the jury room to deliberate on your verdict in this case.

[At this point the court may wish to inform the jury of the scheduling and length of the trial, and other logistical information.]

COMMENT This instruction is derived from Fifth Circuit 1.1; Eighth Circuit 1.06; and former Ninth Circuit 1.12. Cf. Ninth Circuit 1.19.

Bracketed material allows options to the court on when to give instructions on the law. It is recommended that instructions on the law be given at various points in the trial in order to aid jury comprehension.

(Last Updated October 2017)

II

2 PJI 1 | IMPEACHMENT OF WITNESS’S CHARACTER FOR TRUTHFULNESS

You [are about to hear] [have heard] evidence that [name of witness], a witness, [e.g., has been convicted of a felony, committed forgery on a prior occasion, etc.]. You may use that evidence only to help you decide whether to believe the testimony of the witness and to determine how much weight to give it. That evidence does not mean that the witness engaged in any conduct alleged in this case, and you must not use that evidence as any proof that the witness engaged in that conduct.
COMMENT This instruction is derived from Eighth Circuit 2.09 and former Ninth Circuit 3.12. Cf. Ninth Circuit 2.8. For variations, see Fifth Circuit 2.17 (covering prior convictions only).

The bracketed alternative allows this instruction to be given not only at the time of testimony but also at the close of the evidence. The instruction is intended to cover the admission of bad acts and convictions under Federal Rules of Evidence 608 and 609.

(Last Updated October 2017)

2 PJI 2 | JUDICIAL NOTICE

The rules of evidence permit the judge to accept facts that cannot reasonably be disputed. This is called judicial notice. I have decided to accept as proved the fact that [state the fact that the court has judicially noticed], even though no evidence has been introduced to prove this fact. You must accept this fact as true for purposes of this case.
COMMENT The instruction is derived from former Ninth Circuit 2.5. Cf. Ninth Circuit 2.3. For variations, see Fifth Circuit 2.4 and Eighth Circuit 2.04.

An instruction on judicial notice should be given at the time that notice is taken. It may also be given at the time the jury is charged at the close of the evidence.

Federal Rule of Evidence 201(f) provides:
“In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.”

(Last Updated October 2017)

2 PJI 3 | STIPULATION OF TESTIMONY

The parties have agreed that if [witness's name] were called as a witness, [he/she] would testify that [state the stipulated testimony]. This testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if [name of witness] had been present to testify. You must accept the fact that [name of witness] would have given that testimony. However, it is for you to determine the effect or weight to be given to that testimony.
COMMENT The instruction is derived from Fifth Circuit 2.2, Eighth Circuit 2.02, and former Ninth Circuit 2.3. Cf. Ninth Circuit 2.1. The last two sentences are derived from New Mexico Criminal Instruction § 14-113.

When the stipulation is to what a witness would testify to if called, it is error to instruct the jury that it is to consider the stipulated testimony as true. United States v. Benally, 756 F.2d 773 (10th Cir. 1985). See Instruction 2.4 if the stipulation is as to an issue of fact.

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2 PJI 4 | STIPULATION OF FACT

The [parties] have agreed that [set forth stipulated fact or facts] [is/are] true. [The parties have stipulated that certain facts are true, and those stipulations have been read to you during this trial.] You must therefore treat [this fact] [these facts] as having been proved for the purposes of this case.
COMMENT The instruction is derived from Fifth Circuit 2.3 and Eighth Circuit 2.03. For a variation, see Ninth Circuit 2.2 (using “should” rather than “must”). The bracketed material concerning stipulated facts previously read to the jury can be used when the stipulations are too numerous to recount.

This instruction could be applied to matters admitted by way of pleading or a request for admission, as well as to facts stipulated during the trial. If a stipulation or admission is as to a matter of fact, the jury is to be instructed that it must consider the fact as true. Compare Instruction 2.3 (stipulation as to what testimony would be if given).

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2 PJI 5 | USE OF DEPOSITION

A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath and swears to tell the truth, and lawyers for each party may ask questions. A court reporter is present and records the questions and answers.

The deposition of [name of witness], which was taken on [date], is about to be [has been] presented to you [by a video] [by reading the transcript]. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify.

[Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]

COMMENT The instruction is derived from former Ninth Circuit 2.6. Cf. Ninth Circuit 2.4. For a variation, see Fifth Circuit 2.23.

This instruction should be given when deposition testimony is admissible and offered as substantive evidence. See Fed.R.Evid. 804(b)(1), 801(d)(2); Fed.R.Civ.P. 32(a). It should be given before the testimony is read to the jury. The instruction can be modified to be given at the beginning of the trial, as well as when the evidence is presented.

This instruction is not appropriate if answers are being used for impeachment only. If more than one deposition is read into evidence or otherwise presented during the trial, the jury may be reminded of how depositions are taken. But it is not necessary to repeat the entire instruction.

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2 PJI 6 | USE OF INTERROGATORIES

You will now hear [have heard] answers that [name of party] gave in response to written questions submitted by the other side. The written questions are called “interrogatories.” The written answers were given in writing and under oath, before the trial.

You must consider [name of party]’s answers to interrogatories in the same manner as if the answers were made from the witness stand.

COMMENT The instruction is derived from former Ninth Circuit 2.13. Cf. Ninth Circuit 2.10.

This instruction should be used before the interrogatories are read to the jury. It can be modified to be given again at the close of the evidence. The instruction is not appropriate if the answers to the interrogatories are used for impeachment only. See Fed.R.Civ.P. 33.

This instruction should not be used for requests for admission under Fed.R.Civ.P. 36. The effect of a request for admission is conclusive as to the fact admitted.

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2 PJI 7 | CHARTS AND SUMMARIES IN EVIDENCE

[Name of party] has presented exhibits in the form of charts and summaries. I decided to admit these charts and summaries in place of the underlying documents that they represent in order to save time and avoid unnecessary inconvenience. You should consider these charts and summaries as you would any other evidence.
COMMENT The instruction is derived from Sand et al., Modern Federal Jury Instructions, No. 74-11 (2004). “[C]harts and summaries are powerful visual displays for which some judicial explanation is required. Such an instruction will ensure that they are not given improper consideration by the jury.” Id.; compare Instruction 2.8 (providing a limiting instruction when charts and summaries are not evidence).

For a variation, see Ninth Circuit 2.13 (“Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.”).

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2 PJI 8 | CHARTS AND SUMMARIES NOT ADMITTED IN EVIDENCE

Certain charts and summaries that have not been received in evidence have been shown to you in order to help explain or illustrate the contents of books, records, documents, testimony, or other evidence in the case. [Describe the charts and summaries that have not been admitted.] These charts and summaries are not themselves proof of any facts. They are not binding on you in any way. If they do not correctly reflect the facts shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the evidence.
COMMENT The instruction is derived from former Ninth Circuit 3.9. Cf. Ninth Circuit 2.12.

This instruction is applicable to pedagogical devices and illustrations. Use of this material is governed by Rule 611(a) of the Federal Rules of Evidence, and not by Rule 1006 (which applies to summaries of admissible evidence where that evidence is too voluminous to be examined conveniently in court). See United States v. DeBoer, 966 F.2d 1066, 1069 (6th Cir. 1992) (summaries of already admitted evidence are permissible “so long as an appropriate limiting instruction informs the jury that ‘the chart is not itself evidence but is only an aid in evaluating the evidence’”). If a chart or summary is used only to illustrate or explain evidence already admitted, then it is not itself evidence, and it may not be sent to the jury room.

It is suggested that this instruction be given both at the time the summary is used and at the end of the case. See, e.g., United States v. Ray, 370 F.3d 1039, 1047 n.8 (10th Cir. 2004) (suggesting that the court repeat the limiting instruction “in writing at the trial’s conclusion”), vacated on other grounds, 543 U.S. 1109 (2005).

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2 PJI 9 | STRIKING EVIDENCE

I have ordered that [describe the evidence] be struck from the record and I am instructing you that you must disregard that information [testimony]. That means that when you are deciding the case, you must not consider that information [testimony] in any way.
COMMENT The instruction is derived from former Ninth Circuit 1.7. Cf. Ninth Circuit 1.10. It can also be altered to be given as part of a general instruction on evidence at the beginning of the case. See Instruction 1.5. The instruction is to be given when the evidence is struck, and not at the end of the case, as it could be counterproductive to describe the evidence that has been struck at that later point.
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2 PJI 10 | EVIDENCE ADMITTED FOR A LIMITED PURPOSE

You [have heard] [will now hear] evidence that was received for [a] particular limited purpose[s]. [This evidence can be considered by you as evidence that (describe limited purpose)]. It may not be used for any other purpose. [For example, you cannot use it as proof that (discuss specific prohibited purpose)].
COMMENT The instruction is derived from Fifth Circuit 2.15, Eighth Circuit 2.08B, and former Ninth Circuit 1.5. Cf. Ninth Circuit 1.8.

This instruction can be modified slightly to be given again at the close of the evidence. The Court of Appeals has stated, however, that it is error to fail to give a requested limiting instruction “at the time the evidence [i]s admitted.” United States v. Davis, 726 F.3d 434, 445 (3d Cir. 2013) (identifying this issue in a case where the court gave the instruction “only in the final jury charge”).

The Third Circuit has expressed a preference for an instruction that tells the jury both how the evidence can be used and how it must not be used. See Government of Virgin Islands v. Mujahid, 990 F.2d 111 (3d Cir. 1993) (trial judge should tell the jury that a guilty plea of a coconspirator can be used for impeachment of the coconspirator but cannot be used as proof of the defendant’s guilt). See also United States v. Lee, 612 F.3d 170, 191 & n.25 (3d Cir. 2010) (discussing Third Circuit Model Criminal Jury Instruction 4.29 and “encourag[ing] district court judges to delineate the specific grounds for admissibility of 404(b) evidence, even if the entire 404(b) litany has already been recounted”); United States v. Ciavarella, 716 F.3d 705, 728 n.15 (3d Cir. 2013) (noting that evidence admitted under Rule 404(b) “must... ‘be accompanied by a limiting instruction (where requested) about the purpose for which the jury may consider it’ ” (quoting United States v. Cross, 308 F.3d 308, 320-21 (3d Cir. 2002))); Davis, 726 F.3d at 445 (finding error in jury instruction that “included a wide list of purposes” despite trial court’s ruling that the evidence in question was admissible only “to prove knowledge”); SEC v. Teo, 746 F.3d 90, 97 (3d Cir. 2014) (concluding that the district court’s limiting instruction “provid[ed] a meaningful delineation of character evidence from evidence that goes to intent and the absence of mistake” and that it “capture[d] the key points of this Court’s Model [Criminal] Jury Instruction[ § 4:29]”); United States v. Bailey, 840 F.3d 99, 128-29 & n.138 (3d Cir. 2016) (quoting an instruction that “undisputedly met” the requirement for a requested limiting instruction under Rule 404(b) by contrasting permissible and impermissible uses of the evidence), cert. denied, 137 S. Ct. 1116 (2017); United States v. Repak, 852 F.3d 230, 248 (3d Cir. 2017) (holding that the district court “appropriately provid[ed] limiting instructions for the other-acts evidence as requested by” the defendant, and quoting the relevant instructions, which directed that the evidence could be used “only for the purpose of” proving the defendant’s state of mind). Cf. United States v. Caldwell, 760 F.3d 267, 274 (3d Cir. 2014) (stressing “that Rule 404(b) must be applied with careful precision, and that evidence of a defendant's prior bad acts is not to be admitted unless both the proponent and the District Court plainly identify a proper, non-propensity purpose for its admission”).

For discussions of the importance of a limiting instruction when inadmissible evidence is disclosed to a jury under Evidence Rule 703’s balancing test, see the 2000 Committee Note to Evidence Rule 703 (“If the otherwise inadmissible information is admitted under [Rule 703’s] balancing test, the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes.”), and Williams v. Illinois, 132 S. Ct. 2221, 2241 (2012) (plurality opinion) (“[E]xperts are generally precluded from disclosing inadmissible evidence to a jury. See Fed. Rule Evid. 703.... [I]f such evidence is disclosed, the trial judges may and, under most circumstances, must, instruct the jury that out-of-court statements cannot be accepted for their truth, and that an expert's opinion is only as good as the independent evidence that establishes its underlying premises.”).

Instruction 2.10 can be used in multiple party cases where evidence is admissible against one party but not another (e.g., a statement by an agent that is admissible against the agent but not the principal).

See Instruction 1.5, including a reference to limited use instructions as part of a general instruction on evidence to be given at the beginning of the case.

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2 PJI 11 | OPINION TESTIMONY

You have heard [will hear] testimony containing opinions from [name of witness]. In weighing this opinion testimony, you may consider [his/her] qualifications, the reasons for [his/her] opinions, and the reliability of the information supporting those opinions, as well as the factors I have previously mentioned for weighing the testimony of any other witness. The opinion of [name of witness] should receive whatever weight and credit, if any, you think appropriate, given all the other evidence in the case.

In deciding whether to accept or rely upon the opinion of [name of witness], you may consider any bias that [name of witness] may have, including any bias that may arise from evidence that [name of witness] has been or will be paid for reviewing the case and testifying [or from evidence that [name of witness] testifies regularly and makes a large portion of [his/her] income from testifying in court].

COMMENT This instruction is derived from Fifth Circuit 2.19 and former Ninth Circuit 3.7. Cf. Ninth Circuit 2.11. For a variation, see Eleventh Circuit 5.2 (adding: “When a witness has been or will be paid for reviewing and testifying concerning the evidence, you may consider the possibility of bias and should view with caution the testimony of such a witness where court testimony is given with regularity and represents a significant portion of the witness' income.”).

The instruction avoids labeling the witness as an “expert.” If the court refrains from designating the witness as an “expert” this will “ensure[] that trial courts do not inadvertently put their stamp of authority” on a witness’ opinion, and will protect against the jury’s being “overwhelmed by the so-called ‘experts’.” Hon. Charles Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word “Expert” Under the Federal Rules of Evidence in Criminal and Civil Jury Trials, 154 F.R.D. 537, 559 (1994). See Advisory Committee Note to Federal Rule of Evidence 702 (2000) (cautioning against instructing the jury that the witness is an “expert”).

The bracketed material can be used to give the instruction before the expert testifies. For example, the instruction could be given as part of the initial instruction on matters of evidence. See Instructions 1.51.7.

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2 PJI 12 | FOREIGN LANGUAGE TESTIMONY OR AUDIO RECORDING

You are about to hear [testimony of a witness who will be testifying in] [an audio recording in] [language used]. The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know the language used, it is important that all jurors consider the same evidence. So you must base your decision on the evidence presented in the English [interpretation] [translation]. You must disregard any different meaning.

[In this case there is a dispute over the translation of certain statements in a foreign language. It is for you to determine which, if either, translation is accurate.]

COMMENT The Ninth Circuit has separate instructions for foreign language testimony and foreign language recordings. The model combines them and provides alternatives in brackets. See Ninth Circuit 2.6 and 2.7.

The instruction concerning recordings is appropriate only if the accuracy of the translation is not at issue. See also Instruction 2.13 on transcriptions of recordings.

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2 PJI 13 | TRANSCRIPT OF AUDIO-RECORDED CONVERSATION

At this time you are going hear conversations that were recorded. This is proper evidence for you to consider. Please listen to it very carefully. I am going to allow you to have a transcript of the recording [prepared by ___________] to help you identify speakers and as a guide to help you listen to the recording. If you believe at any point that the transcript says something different from what you hear on the recording, remember it is the recording that is the evidence, not the transcript. Any time there is a variation between the recording and the transcript, you must be guided solely by what you hear on the recording and not by what you see in the transcript.

[In this case there are two transcripts because there is a difference of opinion as to what is said on the recording. You may disregard any portion of either or both transcripts if you believe they reflect something different from what you hear on the recording. It is what you hear on the recording that is evidence, not the transcripts.]

COMMENT The instruction is derived from former Ninth Circuit 2.7. Cf. Ninth Circuit 2.5.

This instruction can be modified to be given sometime after the recording is heard, e.g., at the close of the case. See Sixth Circuit (Criminal) § 7.17:
You have heard some tape recordings that were received in evidence, and you were given some written transcripts of the tapes. Keep in mind that the transcripts are not evidence. They were given to you only as a guide to help you follow what was being said. The tapes themselves are the evidence. If you noticed any differences between what you heard on the tapes and what you read in the transcripts, you must rely on what you heard, not what you read. And if you could not hear or understand certain parts of the tapes, you must ignore the transcripts as far as those parts are concerned.

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2 PJI 14 | RECESS ADMONITION

We are about to take [our first] [a] recess [and I remind you of the instruction I gave you earlier]. During this recess and any other recess, you must not discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else. If anyone tries to talk to you about the case, do not tell your fellow jurors but tell me about it immediately. [Do not read, watch or listen to any news reports of the trial, or conduct any research or investigation, including on the Internet. Remember that I told you not to use any electronic tools to communicate with anyone about the case or to do research relating to the case.] Finally, remember to keep an open mind until all the evidence has been received and you have heard the views of your fellow jurors.

If you need to speak with me about anything, simply give a signed note to [identify court personnel] to give to me.

[I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on occasion.]

COMMENT The instruction is derived from Fifth Circuit 2.1, Eighth Circuit 2.01 and former Ninth Circuit 2.1. Cf. Ninth Circuit 1.12.

Jurors should be reminded that they have duties and responsibilities even when not in court. See, e.g., United States v. Williams, 635 F.2d 744 (8th Cir. 1980) (it is essential to a fair trial that the jury be cautioned as to what conduct is permissible when not in court; an instruction is particularly necessary before the jury separates at night when they will converse with friends and relatives or possibly encounter trial publicity).

This instruction may be modified to be given at the beginning of the trial, as well as before a recess. See also Instruction 1.3 (providing similar admonitions as part of a broader instruction at the beginning of the case).

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III

3 PJI 1 | DELIBERATIONS

When you retire to the jury room to deliberate, you may take with you [these instructions] [your notes] [and] the exhibits that the Court has admitted into evidence. You should select one member of the jury as your foreperson. That person will preside over the deliberations and speak for you here in open court.

You have two main duties as jurors. The first one is to decide what the facts are from the evidence that you saw and heard here in court. Deciding what the facts are is your job, not mine, and nothing that I have said or done during this trial was meant to influence your decision about the facts in any way.

Your second duty is to take the law that I give you, apply it to the facts, and decide if, under the appropriate burden of proof, the parties have established their claims. It is my job to instruct you about the law, and you are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them. This includes the instructions that I gave you before and during the trial, and these instructions. All the instructions are important, and you should consider them together as a whole.

Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way.

As jurors, you have a duty to consult with each other and to deliberate with the intention of reaching a verdict. Each of you must decide the case for yourself, but only after a full and impartial consideration of all of the evidence with your fellow jurors. Listen to each other carefully. In the course of your deliberations, you should feel free to re-examine your own views and to change your opinion based upon the evidence. But you should not give up your honest convictions about the evidence just because of the opinions of your fellow jurors. Nor should you change your mind just for the purpose of obtaining enough votes for a verdict.

When you start deliberating, do not talk to the jury officer, to me or to anyone but each other about the case. During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a cell phone, smart phone [like Blackberries or iPhones], or computer of any kind; the internet, any internet service, or any text or instant messaging service [like Twitter]; or any internet chat room, blog, website, or social networking service [such as Facebook, MySpace, LinkedIn, or YouTube], to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

You may not use these electronic means to investigate or communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom. Information on the internet or available through social media might be wrong, incomplete, or inaccurate. Information that you might see on the internet or on social media has not been admitted into evidence and the parties have not had a chance to discuss it with you. You should not seek or obtain such information and it must not influence your decision in this case.

If you have any questions or messages for me, you must write them down on a piece of paper, have the foreperson sign them, and give them to the jury officer. The officer will give them to me, and I will respond as soon as I can. I may have to talk to the lawyers about what you have asked, so it may take some time to get back to you.

One more thing about messages. Never write down or tell anyone how you stand on your votes. For example, do not write down or tell anyone that a certain number is voting one way or another. Your votes should stay secret until you are finished.

Your verdict must represent the considered judgment of each juror. In order for you as a jury to return a verdict, each juror must agree to the verdict. Your verdict must be unanimous.

A form of verdict has been prepared for you. It has a series of questions for you to answer. You will take this form to the jury room and when you have reached unanimous agreement as to your verdict, you will fill it in, and have your foreperson date and sign the form. You will then return to the courtroom and your foreperson will give your verdict. Unless I direct you otherwise, do not reveal your answers until you are discharged. After you have reached a verdict, you are not required to talk with anyone about the case unless I order you to do so.

Once again, I want to remind you that nothing about my instructions and nothing about the form of verdict is intended to suggest or convey in any way or manner what I think your verdict should be. It is your sole and exclusive duty and responsibility to determine the verdict.

COMMENT The instruction is derived from Fifth Circuit 2.11 and 2.12, Eighth Circuit 3.07, former Ninth Circuit 4.1, and the instruction used in the District of Delaware. Cf. Ninth Circuit 3.1.

The portion of the instruction concerning electronic media is drawn from Proposed Model Jury Instructions on the Use of Electronic Technology to Conduct Research on or Communicate about a Case, prepared by the Judicial Conference Committee on Court Administration and Case Management (CACM) in December 2009. See United States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011) (“We enthusiastically endorse [the CACM] instructions and strongly encourage district courts to routinely incorporate them or similar language into their own instructions.”). CACM released an updated version of the model instructions in June 2012 (the updated model is available at http://news.uscourts.gov/revised-jury-instructionshope-deter-juror-use-social-media-during-trial). Obviously, the relevant technologies will evolve over time; users of these instructions should insert a list of current examples in the appropriate place in the instructions.

It may also be useful to remind the jurors, at this point in the case, of the initial instruction to decide the case based only on the evidence presented at trial. See Instruction 1.3; see also Fumo, 655 F.3d at 307 (finding no abuse of discretion in district court’s conclusion that no substantial prejudice resulted from juror’s exposure to extraneous information based partly on fact that “the District Court gave careful and repeated instructions to the jurors, including immediately before deliberation, that they should ‘not let rumors, suspicions, or anything else that [they] may have seen or heard outside of the court influence [their] decision in any way’”).

The Supreme Court has expressed approval of instructions that “explain the jurors’ duty to review the evidence and reach a verdict in a fair and impartial way, free from bias of any kind” and that “emphasize the group dynamic of deliberations by urging jurors to share their questions and conclusions with their colleagues.” Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017) (quoting, as examples, the following instructions: “Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way” and “It is your duty as jurors to consult with one another and to deliberate with one another with a view towards reaching an agreement if you can do so without violence to individual judgment”).

The part of the instruction concerning unanimity may be altered if the parties consent to a non-unanimous verdict. See Fed.R.Civ.P. 48.

In the criminal case of United States v. James, 955 F.3d 336 (3d Cir. 2020), the Court of Appeals held that a jury verdict was not final until the jury was polled and the verdict accepted. It approved of the removal of a juror after the jury had been polled because the polling, combined with further inquiry, led the District Judge to have concerns about the juror’s candor, memory, and English language proficiency.

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3 PJI 2 | NUMBER OF WITNESSES

The weight of the evidence to prove a fact does not necessarily depend on the number of witnesses who testify. What is more important is how believable the witnesses were, and how much weight you think their testimony deserves.
COMMENT See Instruction 1.7, where this instruction is included as an alternative to be given as part of a general instruction on credibility of witnesses at the beginning of the case.

This instruction is not to be given routinely, but it might be given, on request, when there is a disproportionate number of witnesses on one side of the case.

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3 PJI 3 | READ-BACKS OF TRIAL TESTIMONY

At your request, I have decided to have [a transcript of ] [describe the testimony] read [provided] to you in order to assist you in your deliberations. I remind you that you must focus on all of the testimony and evidence presented at the trial. You may not give undue weight to the testimony that is read back to you [provided to you].
COMMENT The instruction contains a bracketed alternative for allowing the jury to receive a transcript of the testimony that the jurors request to re-hear. On allowing read-backs and transcripts of testimony, see United States v. Bertoli, 40 F.3d 1384, 1400 (3d Cir. 1994), where the court stated that two concerns may arise when a jury requests a read-back of testimony:
(1) such requests may slow the trial when the requested testimony is lengthy; (2) if read only a portion of testimony, the jury may give undue weight to that portion. The Bertoli court held, however, that “unless a trial court's refusal to read back testimony is supported by one of these two concerns, a trial judge abuses his discretion by denying the [jury’s] request.” Id. (internal quotation marks omitted). See, e.g., United States v. Shabazz, 564 F.3d 280, 285 (3d Cir. 2009) (it was error to deny jury’s request for read-back of testimony that “ran no longer than 25 minutes” and “was not peripheral, as [the witness] was both the only witness to link Shabazz directly to the robbery who was not testifying in connection with a plea agreement and the only one who expressed some uncertainty about his identification”); United States v. Kolodesh, 787 F.3d 224, 238-39 (3d Cir. 2015) (there was no abuse of discretion, “let alone... plain error,” in trial court’s failure to halt proceedings until it could provide testimony transcripts requested by the jury, or in trial court’s refusal to provide edited portions rather in than full transcripts, or in trial court’s statement to jury that as to one witness, only audio playback was available and not a transcript). The Bertoli court further held that a trial court is within its discretion in providing a transcript of the requested testimony. The Bertoli court suggested that any transcript or read-back should be accompanied by an instruction “to focus on the entire testimony and evidence.” Bertoli, 40 F.3d at 1401.

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3 PJI 4 | DEADLOCK

It is your duty as jurors to consult with one another and to deliberate with a view toward reaching an agreement, if you can do so consistent with your individual judgments. Each of you must decide the case for yourself, but you should do so only after a consideration of the case with your fellow jurors, and you must be open to their opinions. You should not be influenced to vote a certain way, however, by the single fact that a majority of the jurors, or any of them, will vote in a certain way. In other words, you should not surrender your honest convictions concerning the effect or weight of the evidence for the mere purpose of returning a verdict, or solely because of the opinions of the other jurors.

In the course of your deliberations you should not hesitate to reexamine your own views, and to change your opinion if you are convinced that those views are wrong. To reach a unanimous result you must examine the questions submitted to you openly and frankly, with proper regard for the opinions of others and with a willingness to reexamine your own views.

Remember that you are not partisans; you are judges — judges of the facts. Your only interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.

If you should fail to agree on a verdict, the case is left open and must be resolved at a later time. There is no reason to think that another trial would be conducted in a better way or that a different jury would decide it any better. Any future jury must be selected in the same manner and from the same source as you.

We try cases to dispose of them and to reach a common conclusion if it is consistent with the conscience of each member of the jury. I suggest that, in deliberating, you each recognize that you are not infallible, that you listen to the opinions of the other jurors and that you do so carefully with a view to reaching a common conclusion, if you can. You may take all the time that you feel is necessary.

I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.

You may now retire and continue your deliberations.

COMMENT The instruction is derived from Eighth Circuit 3.07 and former Ninth Circuit 4.6. Cf. Ninth Circuit 3.5. See also Third Circuit (Criminal) Instruction 9.05.

An instruction encouraging a deadlocked jury to reach a verdict should be given with great caution. Such an instruction was approved in Allen v. United States, 164 U.S. 492 (1896). But “Allen” charges often have been criticized as coercive and as an unwarranted intrusion upon the province of the jury.

Note that the model instruction does not specifically encourage those jurors in the minority to reconsider their views or distrust their judgment. An instruction to that effect has been declared to be prohibited in the Third Circuit. See United States v. Fioravanti, 412 F.2d 407, 418 (3d Cir. 1969) (“in this circuit, trial judges are not to give instructions either in the main body of the charge or in the form of a supplement that direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his. Such an instruction will be deemed error, normally reversible error.”). While it has been held that the prohibition on instructions targeted at the minority of jurors is limited to criminal cases, see Cary v. Allegheny Techs., Inc., 267 F. Supp. 2d 442 (W.D. Pa. 2003), the danger of coercion in such a charge cautions against its use even in civil cases. In concluding that a modified Allen charge was “proper[]” in the context of a particular civil case, the Court of Appeals noted that the charge in question “does not speak specifically to minority jurors.” U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 940 & n.32 (3d Cir. 1990).

Courts have also disapproved of statements telling a deadlocked jury that it must reach a decision or “instruct[ing] a deadlocked jury to consider the burdens and expense to the government of a new trial.” United States v. Brennan, 326 F.3d 176, 193 (3d Cir. 2003) (collecting cases). On the latter point, the Court of Appeals has explained that “a charge is unduly coercive when the trial court not only states that a new trial will result, but goes further and unduly emphasizes the consequences, i.e., time, toil, or expense, that will accompany a failure to arrive at an unanimous verdict.” United States v. Jackson, 443 F.3d 293, 298 (3d Cir. 2006) (rejecting challenge to trial judge’s statement that “the case will have to be retried in front of another jury” and reasoning that “any undue coercion created in this case by the brief mention of a new trial was mitigated by” the trial judge’s emphasis on “the government's burden of proof [and] the jurors' responsibility to consider honestly the evidence” and the trial judge’s directive that jurors should not “surrender [their] beliefs for the sake of expediency”).

(Last Updated October 2017)

IV

4 PJI 1 | SECTION 1983 INTRODUCTORY INSTRUCTION

[Plaintiff]1` is suing under Section 1983, a civil rights law passed by Congress that provides a remedy to persons who have been deprived of their federal [constitutional] [statutory] rights under color of state law.2
COMMENT The instructions in this Chapter address Section 1983 claims other than employment claims; as to employment claims, see Chapter Seven. These instructions address the elements of Section 1983 claims generally3 and of a few pertinent defenses.4 After covering topics concerning damages,5 the instructions also address the elements of particular types of constitutional violations that might give rise to a Section 1983 claim.6 The instructions also address a few related topics such as burdens of proof.7 The instructions generally do not focus on procedural matters that would not affect how the jury is instructed.8
(Last Updated July 2019)

Footnotes

1 Referring to the parties by their names, rather than solely as “Plaintiff” and “Defendant,” can improve jurors’ comprehension. In these instructions, bracketed references to “[plaintiff]” or “[defendant]” indicate places where the name of the party should be inserted.
2 In these instructions, references to action under color of state law are meant to include action under color of territorial law. See, e.g., Eddy v. Virgin Islands Water & Power Auth., 955 F. Supp. 468, 476 (D.V.I. 1997) (“The net effect of the Supreme Court decisions interpreting 42 U.S.C. § 1983, including Will [v. Michigan Department of State Police, 491 U.S. 58 (1989),] and Ngiraingas [v. Sanchez, 495 U.S. 182 (1990)], is to treat the territories and their officials and employees the same as states and their officials and employees.”), reconsidered on other grounds, 961 F. Supp. 113 (D.V.I. 1997); see also Iles v. de Jongh, 638 F.3d 169, 177-78 (3d Cir. 2011) (analyzing official-capacity claims against Governor of Virgin Islands under, inter alia, Will).
3 See Instructions 4.3 through 4.6.8.
4 See Instructions 4.7.1 and 4.7.3; see also Comment 4.7.2.
5 See Instructions 4.8.1 through 4.8.3.
6 See Instructions 4.9 through 4.16.
7 See Instruction 4.13.1; see also Comment 4.2.
8 Exhaustion of remedies doctrine provides one example. In general, there is no requirement that a Section 1983 plaintiff exhaust state-law remedies or state administrative processes before suing under Section 1983. See Monroe v. Pape, 365 U.S. 167, 183 (1961) (“The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.”), overruled on other grounds by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Patsy v. Bd. of Regents, 457 U.S. 496, 516 (1982) (“[E]xhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983.”). Exhaustion requirements do apply to prisoner claims regarding prison conditions under Section 1983 and other federal laws. See 42 U.S.C. § 1997e(a) (provision of the Prison Litigation Reform Act, or PLRA, stating that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted”). But the Court of Appeals has made clear that PLRA exhaustion presents a question that can be resolved by the judge. See Small v. Camden Cty., 728 F.3d 265, 269, 271 (3d Cir. 2013); see also Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018) (setting procedures to govern district-court fact-finding on question of PLRA exhaustion).

4 PJI 2 | SECTION 1983 – BURDEN OF PROOF

[Provide Instruction 1.10 on burden of proof, modified (if necessary) as discussed in the Comment below.]
COMMENT The plaintiff bears the burden of proof on the elements of a Section 1983 claim. See, e.g., Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). The court can use Instruction 1.10 to apprise the jury of this burden.

Where there is a jury question on the issue of qualified immunity, some additional instruction on burdens may occasionally be necessary.

Although the defendant has the burden of pleading the defense of qualified immunity, see Gomez v. Toledo, 446 U.S. 635, 640 (1980); Thomas v. Independence Tp., 463 F.3d 285, 293 (3d Cir. 2006),9 the Supreme Court has not definitively established who bears the burden of proof with respect to that defense, see, e.g., Gomez, 446 U.S. at 642 (Rehnquist, J., concurring) (construing the opinion of the Court “to leave open the issue of the burden of persuasion, as opposed to the burden of pleading, with respect to a defense of qualified immunity”).

The Third Circuit has stated that the defendant bears the burden of proof on qualified immunity. See, e.g., Burns v. PA Dep’t of Corrections, 642 F.3d 163, 176 (3d Cir. 2011) (defendant has burden to establish entitlement to qualified immunity); Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (same); Beers Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001) (same); Karnes v. Skrutski, 62 F.3d 485, 491 (3d Cir. 1995) (same); Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989) (same); Ryan v. Burlington County, N.J., 860 F.2d 1199, 1204 n.9 (3d Cir. 1988) (same). However, some other Third Circuit opinions suggest that the burden of proof regarding qualified immunity may vary with the element in question.10 For example, the court has stated that “[w]here a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant's conduct violated some clearly established statutory or constitutional right.... Only if the plaintiff carries this initial burden must the defendant then demonstrate that no genuine issue of material fact remains as to the ‘objective reasonableness’ of the defendant's belief in the lawfulness of his actions.” Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997); see also Hynson By and Through Hynson v. City of Chester, 827 F.2d 932, 935 (3d Cir. 1987) (“Although the officials claiming qualified immunity have the burden of pleading and proof... , a plaintiff who seeks damages for violation of constitutional rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue.”).

A distinction between the burden of proof as to the constitutional violation and the burden of proof as to objective reasonableness makes sense in the light of the structure of Section 1983 litigation. To prove her claim, the plaintiff must prove the existence of a constitutional violation; qualified immunity becomes relevant only if the plaintiff carries that burden. Accordingly, the plaintiff should bear the burden of proving the existence of a constitutional violation in connection with the qualified immunity issue as well. However, it would accord with decisions such as Kopec (and it would not contravene decisions such as Sherwood) to place the burden on the defendant to prove that a reasonable officer would not have known, under the circumstances, that the conduct was illegal.11

As noted in Comment 4.7.2, a jury question concerning qualified immunity will arise only when there are material questions of historical fact. The court should submit the questions of historical fact to the jury by means of special interrogatories; the court can then resolve the question of qualified immunity by reference to the jury’s determination of the historical facts. Many questions of historical fact may be relevant both to the existence of a constitutional violation and to the question of objective reasonableness; as to those questions, the court should instruct the jury that the plaintiff has the burden of proof. Other questions of historical fact, however, may be relevant only to the question of objective reasonableness; as to those questions, if any, the court should instruct the jury that the defendant has the burden of proof.

(Last Updated July 2019)

Footnotes

9 See Sharp v. Johnson, 669 F.3d 144, 158-59 (3d Cir. 2012) (noting “that parties should generally assert affirmative defenses early in the litigation,” but finding no abuse of discretion in trial court’s permission to assert qualified immunity defense at trial where the defense had been pleaded and where the failure to present the defense by motion prior to trial made sense – due to the need for fact development – and did not prejudice the plaintiff).
10 As discussed below (see Comment 4.7.2), the qualified immunity analysis poses three questions: (1) whether the defendant violated a constitutional right; (2) whether the right was clearly established; and (3) whether it would have been clear to a reasonable official, under the circumstances, that the conduct was unlawful. The issue of evidentiary burdens of proof implicates only the first and third questions.
11 There is language in Estate of Smith v. Marasco, 430 F.3d 140 (3d Cir. 2005), which may be perceived as being in tension with Kopec’s statement that the defendant has the burden of proof on qualified immunity. In Marasco the Court of Appeals held the defendants were entitled to qualified immunity on the plaintiffs’ state-created danger claim because the court “conclude[d] that the Smiths cannot show that a reasonable officer would have recognized that his conduct was ‘conscience shocking.’” Id. at 156. While this language can be read as contemplating that the plaintiffs have a burden of persuasion, it should be noted that the court was not focusing on a factual dispute but rather on the clarity of the caselaw at the time of the relevant events. See id. at 154 (stressing that the relevant question was “whether the law, as it existed in 1999, gave the troopers ‘fair warning’ that their actions were unconstitutional”) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

4 PJI 3 | SECTION 1983 – ELEMENTS OF CLAIM

[Plaintiff] must prove both of the following elements by a preponderance of the evidence:

First: [Defendant] acted under color of state law.

Second: While acting under color of state law, [defendant] deprived [plaintiff] of a federal [constitutional right] [statutory right].


I will now give you more details on action under color of state law, after which I will tell you the elements [plaintiff] must prove to establish the violation of [his/her] federal [constitutional right] [statutory right].

COMMENT “By the plain terms of § 1983, two – and only two – allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also, e.g., Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (“A prima facie case under § 1983 requires a plaintiff to demonstrate: (1) a person deprived him of a federal right; and (2) the person who deprived him of that right acted under color of state or territorial law.”).

Some authorities include in the elements instruction a statement that the plaintiff must prove that the defendant’s acts or omissions were intentional. See, e.g., Ninth Circuit Civil Instruction 11.1. It is not clear, however, that the elements instruction is the best place to address the defendant’s state of mind. “Section 1983 itself ‘contains no state of mind requirement independent of that necessary to state a violation’ of the underlying federal right.... In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation.” Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 405 (1997) (quoting Daniels v. Williams, 474 U.S. 327, 330 (1986)); see also Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir. 1994) (noting that “section 1983 does not include any mens rea requirement in its text, but the Supreme Court has plainly read into it a state of mind requirement specific to the particular federal right underlying a § 1983 claim”). Because the mens rea requirement will depend on the nature of the constitutional violation, the better course is to address the requirement in the instructions on the specific violation(s) at issue in the case.

Some authorities include, as a third element, a requirement that the defendant caused the plaintiff’s damages. See, e.g., Fifth Circuit Civil Instruction 10.1; Eleventh Circuit Civil Instruction 2.2. It is true that the plaintiff cannot recover compensatory damages without showing that the defendant’s violation of the plaintiff’s federal rights caused those damages. See Instruction 4.8.1, infra. It would be misleading, however, to consider this an element of the plaintiff’s claim: If the plaintiff proves that the defendant, acting under color of state law, violated the plaintiff’s federal right, then the plaintiff is entitled to an award of nominal damages even if the plaintiff cannot prove actual damages. See infra Instruction 4.8.2.

If the Section 1983 claim asserts a conspiracy to deprive the plaintiff of civil rights,12 additional instructions will be necessary. See, e.g., Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999) (“In order to prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting under color of state law conspired to deprive him of a federally protected right.”); Marchese v. Umstead, 110 F. Supp. 2d 361, 371 (E.D. Pa. 2000) (“To state a section 1983 conspiracy claim, a plaintiff must allege: (1) the existence of a conspiracy involving state action; and (2) a depravation [sic] of civil rights in furtherance of the conspiracy by a party to the conspiracy.”); see also Avery, Rudovsky & Blum,13 Instructions 12:31, 12:32, 12:33, & 12:43 (providing suggested instructions regarding a Section 1983 conspiracy claim).

(Last Updated July 2019)

Footnotes

12 Such a claim should be distinguished from the use of evidence of a conspiracy in order to establish that a private individual acted under color of state law. See infra Instruction 4.4.3.
13 MICHAEL AVERY, DAVID RUDOVSKY & KAREN BLUM, POLICE MISCONDUCT: LAW AND LITIGATION §§ 12:31, 12:32, 12:33, & 12:43 (updated Oct. 2005) (available on Westlaw in the POLICEMISC database).

4 PJI 4 | SECTION 1983 – ACTION UNDER COLOR OF STATE LAW

The first element of [plaintiff’s] claim is that [defendant] acted under color of state law. This means that [plaintiff] must show that [defendant] was using power that [he/she] possessed by virtue of state law.

A person can act under color of state law even if the act violates state law. The question is whether the person was clothed with the authority of the state, by which I mean using or misusing the authority of the state.

By “state law,” I mean any statute, ordinance, regulation, custom or usage of any state. And when I use the term “state,” I am including any political subdivisions of the state, such as a county or municipality, and also any state, county or municipal agencies.

COMMENT Whenever possible, the court should rule on the record whether the conduct of the defendant constituted action under color of state law. In such cases, the court can use Instruction 4.4.1 to instruct the jury that this element of the plaintiff’s claim is not in dispute.

In cases involving material disputes of fact concerning action under color of state law, the court should tailor the instructions on this element to the nature of the theory by which the plaintiff is attempting to show action under color of state law. This comment provides an overview of some theories that can establish such action; Instructions 4.4.2 and 4.4.3 provide models of instructions for use with two such theories.

“[C]onduct satisfying the state action requirement of the Fourteenth Amendment satisfies [Section 1983’s] requirement of action under color of state law.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982).14 “Like the state action requirement of the Fourteenth Amendment, the under color of state law element of § 1983 excludes from its reach ‘“merely private conduct, no matter how discriminatory or wrongful.”’” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948))). Liability under Section 1983 “attaches only to those wrongdoers ‘who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.’” National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988) (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).15

The inquiry into the question of action under color of state law “is fact specific.” Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). See also Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1934 (2019) (holding that the operator of public access channels on a cable television system was not a state actor, while noting that the result might be different if a local government itself operated public access channels on a local cable system or obtained a property interest in the public access channels).

“In the typical case raising a state action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action.... Thus, in the usual case we ask whether the State provided a mantle of authority that enhanced the power of the harm causing individual actor.” Tarkanian, 488 U.S. at 192. Circumstances that can underpin a finding of state action include the following:

• A finding of “‘a sufficiently close nexus between the state and the challenged action of the [private] entity so that the action of the latter may fairly be treated as that of the State itself.’”16

• A finding that “the State create[d] the legal framework governing the conduct.”17

• A finding that the government “delegate[d] its authority to the private actor.”18

• A finding that the government “knowingly accept[ed] the benefits derived from unconstitutional behavior.”19

• A finding that “the private party has acted with the help of or in concert with state officials.”20 For an instruction on private action in concert with state officials, see Instruction 4.4.3.

• A finding that the action “‘result[ed] from the State's exercise of “coercive power.”’”21

• A finding that “‘the State provide[d] “significant encouragement, either overt or covert. ”’”22

• A finding that “‘a nominally private entity... is controlled by an “agency of the State. ”’”23

• A finding that “‘a nominally private entity... has been delegated a public function by the State.’”24

• A finding that “‘a nominally private entity... is “entwined with governmental policies,” or [that] government is “entwined in [its] management or control. ”’”25


The fact that a defendant was pursuing a private goal does not preclude a finding that the defendant acted under color of state law. See Georgia v. McCollum, 505 U.S. 42, 54 (1992) (noting, in a case involving a question of “state action” for purposes of the Fourteenth Amendment, that “[w]henever a private actor’s conduct is deemed ‘fairly attributable’ to the government, it is likely that private motives will have animated the actor's decision”).

The “labyrinthine” and “murky” analysis of whether private action can be deemed that of the state can be avoided if the “actor is the government,” Sprauve v. West Indian Company, 799 F.3d 226, 229 (3d Cir. 2015) (internal quotation marks and citations omitted), such as a public corporation over which the state has “permanent and complete control” by government appointees. Id. at 233 (footnote omitted).

(Last Updated July 2019)

Footnotes

14 See also Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n.2 (2001) (“If a defendant's conduct satisfies the state action requirement of the Fourteenth Amendment, the conduct also constitutes action ‘under color of state law’ for § 1983 purposes.”).
15 Compare Citizens for Health v. Leavitt, 428 F.3d 167, 182 (3d Cir. 2005) (holding that a federal regulation that “authoriz[ed] conduct that was already legally permissible” – and that did not preempt state laws regulating such conduct more strictly – did not meet the “state action requirement”).
16 McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 524 (3d Cir. 1994) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).
17 Tarkanian, 488 U.S. at 192 (citing North Ga. Finishing, Inc. v. Di Chem, Inc., 419 U.S. 601 (1975)).
18 Id. (citing West v. Atkins, 487 U.S. 42 (1988)); see also Reichley v. Pennsylvania Dept. of Agriculture, 427 F.3d 236, 245 (3d Cir. 2005) (holding that trade association’s “involvement and cooperation with the Commonwealth's efforts to contain and combat” avian influenza did not show requisite delegation of authority to the trade association).
19 Tarkanian, 488 U.S. at 192 (citing Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961)).
20 McKeesport Hosp., 24 F.3d at 524. The Court of Appeals has explained that Supreme Court caselaw concerning “joint action or action in concert suggests that some sort of common purpose or intent must be shown.... [A] private citizen acting at the orders of a police officer is not generally acting in a willful manner, especially when that citizen has no self interest in taking the action.... [W]illful participation... means voluntary, uncoerced participation.” Harvey v. Plains Twp. Police Dept., 421 F.3d 185, 195-96 (3d Cir. 2005).
21 Benn v. Universal Health System, Inc., 371 F.3d 165, 171 (3d Cir. 2004) (quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982))).
22 Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296 (quoting Blum, 457 U.S. at 1004)).
23 Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296 (quoting Pennsylvania v. Bd. of Dir. of City Trusts of Philadelphia, 353 U.S. 230, 231 (1957) (per curiam))).
24 Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296); ); see Davis v. Samuels, 962 F.3d 105, 111-12 & n.4 (3d Cir. 2020) (stating “[w]e are deeply skeptical” of the district court’s conclusion that operators of a private prison are not government actors and noting that the “Supreme Court has not held that private prison operators cannot be liable for damages under Bivens because they are not ‘federal actors’”); compare Leshko v. Servis, 423 F.3d 337, 347 (3d Cir. 2005) (holding “that foster parents in Pennsylvania are not state actors for purposes of liability under § 1983"); Max v. Republican Committee of Lancaster County, 587 F.3d 198, 199, 203 (3d Cir. 2009) (holding that, under the circumstances, a political committee, its affiliate and certain of its officials were not acting as state actors when they allegedly sought to chill the speech of plaintiff – a committeewoman for the political committee – in connection with the Republican primary election).
25 Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296) (quoting Evans v. Newton, 382 U.S 296, 299, 301 (1966))). See also P.R.B.A. Corp v. HMS Host Toll Roads, 808 F.3d 221 (3d Cir. 2015) (finding insufficiently pervasive entwinement between highway authorities and service area operators because there was no personnel overlap, no involvement in the particular decision at issue, and no indication that a profit sharing arrangement led to “any actual involvement of either entity in the management or control of the other,” even if the authorities required certain signs and photos be displayed).

4 PJI 4.1 | SECTION 1983 – ACTION UNDER COLOR OF STATE LAW IS NOT IN DISPUTE

Version A (government official):

Because [defendant] was an official of [the state of ____] [the county of ____] [the city of ____] at the relevant time, I instruct you that [he/she] was acting under color of state law. In other words, this element of [plaintiff’s] claim is not in dispute, and you must find that this element has been established.

Version B (private individual):

Although [defendant] is a private individual and not a state official, I instruct you that the relationship between [defendant] and the state was sufficiently close that [he/she] was acting under color of state law. In other words, this element of [plaintiff’s] claim is not in dispute, and you must find that this element has been established.


(Last Updated July 2019)

4 PJI 4.2 | SECTION 1983 – DETERMINING WHEN AN OFFICIAL ACTED UNDER COLOR OF STATE LAW

[Defendant] is an official of [the state of ____] [the county of ____] [the city of ____]. However, [defendant] alleges that during the events at issue in this lawsuit, [defendant] was acting as a private individual, rather than acting under color of state law.

For an act to be under color of state law, the person doing the act must have been doing it while clothed with the authority of the state, by which I mean using or misusing the authority of the state. You should consider the nature of the act, and the circumstances under which it occurred, to determine whether it was under color of state law.

The circumstances that you should consider include:

• [Using bullet points, list any factors discussed in the Comment below, and any other relevant factors, that are warranted by the evidence.]

You must consider all of the circumstances and determine whether [plaintiff] has proved, by a preponderance of the evidence, that [defendant] acted under color of state law.

COMMENT “[S]tate employment is generally sufficient to render the defendant a state actor.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 n.18 (1982).26 In some cases, however, a government employee defendant may claim not to have acted under color of state law. Instruction 4.4.2 directs the jury to determine, based on the circumstances,27 whether such a defendant was acting under color of state law.28

Various factors may contribute to the conclusion concerning the presence or absence of action under color of state law.29 The court should list any relevant factors in Instruction 4.4.2. In the case of a police officer defendant, factors could include:

• Whether the defendant was on duty.30 This factor is relevant but not determinative. An off-duty officer who purports to exercise official authority acts under color of state law.31 Conversely, an officer who is pursuing purely private motives, in an interaction unconnected with his or her official duties, and who does not purport to exercise official authority does not act under color of state law.32

• Whether police department regulations provide that officers are on duty at all times.33

• Whether the defendant was acting for work-related reasons. However, the fact that a defendant acts for personal reasons does not necessarily prevent a finding that the defendant is acting under color of state law. A defendant who pursues a personal goal, but who uses governmental authority to do so, acts under under color of state law.34

• Whether the defendant’s actions were related to his or her job as a police officer.35

• Whether the events took place within the geographic area covered by the defendant’s police department.36

• Whether the defendant identified himself or herself as a police officer.37

• Whether the defendant was wearing police clothing.38

• Whether the defendant showed a badge.39

• Whether the defendant used or was carrying a weapon issued by the police department.40

• Whether the defendant used a police car or other police equipment.41

• Whether the defendant used his or her official position to exert influence or physical control over the plaintiff.

• Whether the defendant purported to place someone under arrest.42



In a case involving a non-police officer defendant, factors could include:

• Whether the defendant was on duty.43 This factor is relevant but not determinative. An off-duty official who purports to exercise official authority acts under color of state law.44 Conversely, an official who is pursuing purely private motives, in an interaction unconnected with his or her official duties, and who does not purport to exercise official authority does not act under color of state law.45

• Whether the defendant was acting for work-related reasons. However, the fact that a defendant acts for personal reasons does not necessarily prevent a finding that the defendant is acting under color of state law. A defendant who pursues a personal goal, but who uses governmental authority to do so, acts under under color of state law.46

• Whether the defendant’s actions were related to his or her job as a government official.47

• Whether the events took place within the geographic area covered by the defendant’s department.48

• Whether the defendant identified himself or herself as a government official.49

• Whether the defendant was wearing official clothing.50

• Whether the defendant showed a badge.51

• Whether the defendant used his or her official position to exert influence over the plaintiff.



(Last Updated July 2019)

Footnotes

26 Special problems may arise if the public employee in question has a professional obligation to someone other than the government. Compare, e.g., West v. Atkins, 487 U.S. 42, 43, 54 (1988) (holding that “a physician who is under contract with the State to provide medical services to inmates at a state prison hospital on a part time basis acts ‘under color of state law,’ within the meaning of 42 U.S.C. § 1983, when he treats an inmate”) with Polk County v. Dodson, 454 U.S. 312, 317 n.4 (1981) (“[A] public defender does not act under color of state law when performing the traditional functions of counsel to a criminal defendant.”).
27 The court should take care not to narrow the jury’s focus; the jury should be instructed to consider all relevant circumstances. See Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 608 (3d Cir. 2011) (remanding for new trial due to erroneous verdict form and explaining that “[a]ction under color of state law must be addressed after considering the totality of the circumstances and cannot be limited to a single factual question”).
28 For an instruction concerning the contention that a private defendant acted under color of state law by conspiring with a state official, see Instruction 4.4.3.
29 Compare, e.g., Barna v. City of Perth Amboy, 42 F.3d 809, 816-17 (3d Cir. 1994) (off-duty, non-uniformed officers with police-issue weapons did not act under color of law in altercation with brother-in-law of one of the officers; officers were outside the geographic scope of their jurisdiction, and altercation started when officer accused his brother-in-law of hitting his sister, after which officer’s partner joined the fight, after which both officers tried to leave) with Black v. Stephens, 662 F.2d 181, 188 (3d Cir. 1981) (police officer acted under color of law in altercation that began with a dispute over a traffic incident; “he was on duty as a member of the Allentown Police force, dressed in a police academy windbreaker and... he investigated the Blacks' vehicle because he thought the driver was either intoxicated or in need of help”); see also Paul v. Davis, 424 U.S. 693, 717 (1976) (Brennan, J., joined by Marshall, J., and in relevant part by White, J., dissenting) (“[A]n off duty policeman's discipline of his own children, for example, would not constitute conduct ‘under color of’ law.”).
30 “[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.” West, 487 U.S. at 50.
31 “[O]ff duty police officers who flash a badge or otherwise purport to exercise official authority generally act under color of law.” Bonenberger v. Plymouth Tp., 132 F.3d 20, 24 (3d Cir. 1997).
32 “[N]ot all torts committed by state employees constitute state action, even if committed while on duty. For instance, a state employee who pursues purely private motives and whose interaction with the victim is unconnected with his execution of official duties does not act under color of law.” Bonenberger, 132 F.3d at 24.
33 See Torres v. Cruz, 1995 WL 373006, at *4 (D.N.J. Aug. 24, 1992) (holding that it was relevant to question of action under color of state law that police manual “states that although the officers will be assigned active duty hours, ‘all members shall be considered on duty at all times and shall act promptly, at any time, their services are required or requested’”).
34 See Basista v. Weir, 340 F.2d 74, 80-81 (3d Cir. 1965) (“Assuming arguendo that Scalese's actions were in fact motivated by personal animosity that does not and cannot place him or his acts outside the scope of Section 1983 if he vented his ill feeling towards Basista... under color of a policeman's badge.”).
35 “Manifestations of... pretended [official] authority may include flashing a badge, identifying oneself as a police officer, placing an individual under arrest, or intervening in a dispute involving others pursuant to a duty imposed by police department regulations.” Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994).
36 See id. at 816-17.
37 See Griffin v. Maryland, 378 U.S. 130, 135 (1964).
38 See Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999).
39 See Bonenberger, 132 F.3d at 24.
40 “While a police officer's use of a state issue weapon in the pursuit of private activities will have ‘furthered’ the § 1983 violation in a literal sense, courts generally require additional indicia of state authority to conclude that the officer acted under color of state law.” Barna, 42 F.3d at 817; see also id. at 818 (holding that “the unauthorized use of a police issue nightstick is simply not enough to color this clearly personal family dispute with the imprimatur of state authority”).
41 Rodriguez v. City of Paterson, 1995 WL 363710, at *3 (D.N.J. June 13, 1995) (fact that defendant was equipped with police radio was relevant to question of action under color of state law).
42 See Griffin, 378 U.S. at 135 (holding that the defendant, “in ordering the petitioners to leave the park and in arresting and instituting prosecutions against them – purported to exercise the authority of a deputy sheriff. He wore a sheriff's badge and consistently identified himself as a deputy sheriff rather than as an employee of the park”); Abraham, 183 F.3d at 287 (“[E]ven though Raso was working off duty as a security guard, she was acting under color of state law: she was wearing a police uniform, ordered Abraham repeatedly to stop, and sought to arrest him.”).
43 West, 487 U.S. at 50.
44 Bonenberger, 132 F.3d at 24.
45 Bonenberger, 132 F.3d at 24.
46 Basista, 340 F.2d at 80-81.
47 Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994). See also Galena v. Leone, 638 F.3d 186, 197 (3d Cir. 2011) (citing Barna and stating that “there is no doubt that Leone was acting under color of state law when, in his official capacity as chairperson of the Council, he ordered the deputy sheriff to escort Galena from the Council meeting”).
48 See id. at 816-17.
49 See Griffin, 378 U.S. at 135.
50 See Abraham, 183 F.3d at 287.
51 See Bonenberger, 132 F.3d at 24.

4 PJI 4.3 | SECTION 1983 – DETERMINING WHETHER A PRIVATE PERSON CONSPIRED WITH A STATE OFFICIAL

[Defendant] is not a state official. However, [plaintiff] alleges that [defendant] acted under color of state law by conspiring with one or more state officials to deprive [plaintiff] of a federal right.

A conspiracy is an agreement between two or more people to do something illegal. A person who is not a state official acts under color of state law when [he/she] enters into a conspiracy, involving one or more state officials, to do an act that deprives a person of federal [constitutional] [statutory] rights.

To find a conspiracy in this case, you must find that [plaintiff] has proved both of the following by a preponderance of the evidence:

First: [Defendant] agreed in some manner with [Official Roe and/or another participant in the conspiracy with Roe] to do an act that deprived [plaintiff] of [describe federal constitutional or statutory right].

Second: [Defendant] or a co-conspirator engaged in at least one act in furtherance of the conspiracy.


As I mentioned, the first thing that [plaintiff] must show in order to prove a conspiracy is that [defendant] and [Official Roe and/or another participant in the conspiracy with Roe] agreed in some manner to do an act that deprived [plaintiff] of [describe federal constitutional or statutory right].

Mere similarity of conduct among various persons, or the fact that they may have associated with each other, or may have discussed some common aims or interests, is not necessarily proof of a conspiracy. To prove a conspiracy, [plaintiff] must show that members of the conspiracy came to a mutual understanding to do the act that violated [plaintiff’s] [describe right]. The agreement can be either express or implied. [Plaintiff] can prove the agreement by presenting testimony from a witness who heard [defendant] and [Official Roe and/or another participant in the conspiracy with Roe] discussing the agreement; but [plaintiff] can also prove the agreement without such testimony, by presenting evidence of circumstances from which the agreement can be inferred. In other words, if you infer from the sequence of events that it is more likely than not that [defendant] and [Official Roe and/or another participant in the conspiracy with Roe] agreed to do an act that deprived [plaintiff] of [describe right], then [plaintiff] has proved the existence of the agreement.

In order to find an agreement, you must find that there was a jointly accepted plan, and that [defendant] and [state official] [each other conspirator] knew the plan’s essential nature and general scope. A person who has no knowledge of a conspiracy, but who happens to act in a way which furthers some purpose of the conspiracy, does not thereby become a conspirator. However, you need not find that [defendant] knew the exact details of the plan [or the identity of all the participants in it]. One may become a member of a conspiracy without full knowledge of all the details of the conspiracy.

The second thing that [plaintiff] must show in order to prove a conspiracy is that [defendant] or a co-conspirator engaged in at least one act in furtherance of the conspiracy. [In this case, this requirement is satisfied if you find that [defendant] or a co-conspirator did any of the following things: [Describe the acts alleged by the plaintiff].] [In other words, [plaintiff] must prove that [defendant] or a co-conspirator took at least one action to further the goal of the conspiracy.]

COMMENT Alternative ways to show that a private person acted under color of state law. It should be noted that demonstrating the existence of a conspiracy is not the only possible way to show that a private individual acted under color of state law. See supra Comment 4.4. For example, when a private person is acting, under a contract with the state, to perform a traditional public function, the question may arise whether that person is acting under color of state law. Cf. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974) (discussing “exercise by a private entity of powers traditionally exclusively reserved to the State”); Richardson v. McKnight, 521 U.S. 399, 413 (1997) (in case involving “employees of a private prison management firm,” noting that the Court was not deciding “whether the defendants are liable under § 1983 even though they are employed by a private firm”).

Distinct issues concerning action under color of state law also could arise when a private person hires a public official, the public official violates the plaintiff’s federal rights, and the plaintiff sues the private person for actions that the private person did not agree upon with the state official, but which the state official performed within the scope of his or her employment by the private person.52 There is some doubt whether a private entity can be held liable under Section 1983 on a theory of respondeat superior.53 However, even if respondeat superior liability is unavailable, a private entity should be liable for its employee’s violation if a municipal employer would incur Section 1983 liability under similar circumstances.54 Some of the theories that could establish the private employer’s liability – such as deliberate indifference – could establish the private employer’s liability based on facts that would not suffice to demonstrate a conspiracy.

Absent evidence that the private party and the official conspired to commit the act that violated the plaintiff’s rights, the “color of law” question will focus on whether the private party acts under color of state law because she employs the state official.55 Some indirect light may be shed on this question by NCAA v. Tarkanian, 488 U.S. 179 (1988). The dispute in Tarkanian arose because the NCAA penalized the University of Nevada, Las Vegas for asserted violations of NCAA rules (including violations by Tarkanian, UNLV’s head basketball coach) and threatened further penalties unless UNLV severed its connection with Tarkanian. See id. at 180-81. The Court noted that Tarkanian presented the inverse of the “traditional state-action case,” id. at 192: “[T]he final act challenged by Tarkanian – his suspension – was committed by UNLV” (a state actor), and the dispute focused on whether the NCAA acted under color of state law in directing UNLV to suspend Tarkanian. The Court held that the NCAA did not act under color of state law: “It would be more appropriate to conclude that UNLV has conducted its athletic program under color of the policies adopted by the NCAA, rather than that those policies were developed and enforced under color of Nevada law.” Id. at 199. In so holding, the Court rejected the plaintiff’s contention that “the power of the NCAA is so great that the UNLV had no practical alternative to compliance with its demands”: As the Court stated, “[w]e are not at all sure this is true, but even if we assume that a private monopolist can impose its will on a state agency by a threatened refusal to deal with it, it does not follow that such a private party is therefore acting under color of state law.” Id. at 198-99.

It is possible to distinguish Tarkanian from the scenarios mentioned above. In one sense, Tarkanian might have presented a more persuasive case of action under color of state law, since the NCAA directed UNLV to do the very act that constituted the violation.56 On the other hand, a person’s employment of an off-duty state official might present a more persuasive case in other respects, in the sense that an off-duty police officer might in fact be guided by the private employer’s wishes to a greater extent than UNLV would willingly be guided by the NCAA’s wishes. Thus, Tarkanian may not foreclose the possibility that a private party may act under color of state law when employing a state official, even if the private party does not conspire with the official concerning the act that constitutes a violation of the plaintiff’s rights.57

Comments on Instruction 4.4.3 regarding conspiracy. “[T]o act ‘under color of’ state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting see [sic] ‘under color’ of law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970); United States v. Price, 383 U.S. 787, 794 (1966)); see also Abbott v. Latshaw, 164 F.3d 141, 147-48 (3d Cir. 1998). “[A]n otherwise private person acts ‘under color of’ state law when engaged in a conspiracy with state officials to deprive another of federal rights.” Tower v. Glover, 467 U.S. 914, 920 (1984) (citing Dennis, 449 U.S. at 27 28); see also Adickes, 398 U.S. at 152 (“Although this is a lawsuit against a private party, not the State or one of its officials,... petitioner will have made out a violation of her Fourteenth Amendment rights and will be entitled to relief under § 1983 if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service in The Kress store....”).58 The existence of a conspiracy can be proved through circumstantial evidence. See, e.g., Adickes, 398 U.S. at 158 (“If a policeman were present, we think it would be open to a jury, in light of the sequence that followed, to infer from the circumstances that the policeman and a Kress employee had a 'meeting of the minds' and thus reached an understanding that petitioner should be refused service.”).59

The Third Circuit has suggested that the plaintiff must establish the elements of a civil conspiracy in order to use the existence of the conspiracy to demonstrate state action. See Melo v. Hafer, 912 F.2d 628, 638 n.11 (3d Cir. 1990) (addressing plaintiff’s action-under-color-of-state-law argument and “assum[ing], without deciding, that the complaint alleges the prerequisites of a civil conspiracy”), aff'd on other grounds, 502 U.S. 21 (1991). The Melo court cited a Seventh Circuit opinion that provides additional detail on those elements. See Melo, 912 F.2d at 638 & n.11 (citing Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979), rev’d in part on other grounds, 446 U.S. 754 (1980)). Melo’s citation to Hampton suggests that the plaintiff must show both a conspiracy to violate the plaintiff’s federal rights and an overt act in furtherance of the conspiracy that results in such a violation. See Hampton, 600 F.2d at 620-21 (discussing agreement and overt act requirements). Of course, in order to find liability under Section 1983, the jury must in any event find a violation of the plaintiff’s federal rights; and it will often be the case that the relevant act in violation of the plaintiff’s federal rights would necessarily have constituted an action by a co-conspirator in furtherance of the conspiracy. This may explain why the Supreme Court’s references to the “conspiracy” test do not emphasize the overt-act-resulting-in-violation requirement. See, e.g., Adickes, 398 U.S. at 152.

In appropriate cases, the existence of a conspiracy may also establish that a federal official was acting under color of state law. See Hindes v. F.D.I.C., 137 F.3d 148, 158 (3d Cir. 1998) (“[F]ederal officials are subject to section 1983 liability when sued in their official capacity where they have acted under color of state law, for example in conspiracy with state officials.”).


(Last Updated July 2019)

Footnotes

52 If the private person hires the state official to do the act that constitutes the violation, and the state official agrees to be hired for that purpose, then this constitutes action under color of state law under the conspiracy theory. See Abbott v. Latshaw, 164 F.3d 141, 147-48 (3d Cir. 1998).
53 See, e.g., Victory Outreach Center v. Melso, 371 F. Supp. 2d 642, 646 (E.D.Pa. 2004) (noting that “neither the Supreme Court nor the Third Circuit has addressed the issue of whether a private corporation can be held liable for the acts of its employees on a respondeat superior theory” in a Section 1983 case, and holding that respondeat superior liability is unavailable); Taylor v. Plousis, 101 F. Supp. 2d 255, 263-64 & n.4 (D.N.J. 2000) (holding respondeat superior liability unavailable, but noting “a lingering doubt whether the public policy considerations underlying the Supreme Court’s decision in Monell should apply when a governmental entity chooses to discharge a public obligation by contract with a private corporation”); Miller v. City of Philadelphia, 1996 WL 683827, at *3 (E.D.Pa. Nov. 25, 1996) (holding respondeat superior liability unavailable, and stating that “most courts that have addressed the issue have concluded that private corporations cannot be vicariously liable under § 1983").
54 Cf. Thomas v. Zinkel, 155 F. Supp. 2d 408, 412 (E.D.Pa. 2001) (“Liability of [local government] entities may not rest on respondeat superior, but rather must be based upon a governmental policy, practice, or custom that caused the injury.... The same standard applies to a private corporation, like CPS, that is acting under color of state law.”).
55 This discussion assumes that the state official acts under color of state law when he commits the violation.
56 The Tarkanian majority indicated that the NCAA’s directive to UNLV, and the fact that UNLV decided to follow that directive, did not establish that the NCAA and UNLV conspired (for purposes of showing that the NCAA acted under color of state law). See Tarkanian, 488 U.S. at 197 n.17.
57 In Cruz v. Donnelly, 727 F.2d 79 (3d Cir. 1984), “two police officers, acting at the request of [a private] company's employee, stripped and searched the plaintiff for stolen goods,” id. at 79. Because the court in Cruz found no indication that the store employee exercised control over the officers, Cruz does not address the issue discussed in the text. See id. at 81 (“Cruz' allegations depict only a police investigation that happens to follow the course suggested by comments from a complainant.”).
58 See also Cruz, 727 F.2d at 81 (“[A] store and its employees cannot be held liable under § 1983 unless: (1) the police have a pre arranged plan with the store; and (2) under the plan, the police will arrest anyone identified as a shoplifter by the store without independently evaluating the presence of probable cause.”); Max v. Republican Committee of Lancaster County, 587 F.3d 198, 203 (3d Cir. 2009) (“Even if we accept the premise that poll workers are state actors while guarding the integrity of an election, the defendants here... are not the poll watchers. Defendants here are private parties.... At most, defendants used the poll workers to obtain information. This is not the same as conspiring to violate Max's First Amendment rights.”).
59 In Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir. 2008), the Court of Appeals upheld the grant of summary judgment dismissing conspiracy claims under 42 U.S.C. §§ 1983 and 1985 because the plaintiffs failed to show the required “meeting of the minds.” See Startzell, 533 F.3d at 205 (“Philly Pride and the City ‘took diametrically opposed positions’ regarding how to deal with Appellants' presence at OutFest.... The City rejected Philly Pride's requests to exclude Appellants from attending OutFest; moreover, the police forced the Pink Angels to allow Appellants to enter OutFest under threat of arrest. It was also the vendors' complaints, not requests by Philly Pride, that led the police officers to order Appellants to move toward OutFest's perimeter.”). See also Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 179 (3d Cir. 2010) (holding that plaintiff’s proposed amended complaint failed to plead “any facts that plausibly suggest a meeting of the minds” between the defendants and state-court judges who allegedly hoped for future employment with one of the defendants).

4 PJI 5 | SECTION 1983 – DEPRIVATION OF A FEDERAL RIGHT

[I have already instructed you on the first element of [plaintiff’s] claim, which requires [plaintiff] to prove that [defendant] acted under color of state law.]

The second element of [plaintiff’s] claim is that [defendant] deprived [him/her] of a federal [constitutional right] [statutory right].

[Insert instructions concerning the relevant constitutional or statutory violation.]

COMMENT See below for instructions concerning particular constitutional violations. Instructions 7.0 through 7.5 concern employment discrimination and retaliation claims under Section 1983.


(Last Updated July 2019)

4 PJI 6.1 | SECTION 1983 – SUPERVISORY OFFICIALS

[N.B.: Please see the Comment for a discussion of whether and to what extent this model instruction retains validity after Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).]

[Plaintiff] contends that [supervisor’s] subordinate, [subordinate], violated [plaintiff’s] federal rights, and that [supervisor] should be liable for [subordinate’s] conduct. If you find that [subordinate] violated [plaintiff’s] federal rights, then you must consider whether [supervisor] caused [subordinate’s] conduct.

[Supervisor] is not liable for such a violation simply because [supervisor] is [subordinate’s] supervisor. To show that [supervisor] caused [subordinate’s] conduct, [plaintiff] must show one of three things:

First: [Supervisor] directed [subordinate] to take the action in question;

Second: [Supervisor] had actual knowledge of [subordinate’s] violation of [plaintiff’s] rights and [supervisor] acquiesced in that violation; or

Third: [Supervisor], with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused the violation.


As I mentioned, the first way for [plaintiff] to show that [supervisor] is liable for [subordinate’s] conduct is to show that [supervisor] directed [subordinate] to engage in the conduct. [Plaintiff] need not show that [supervisor] directly, with [his/her] own hands, deprived [plaintiff] of [his/her] rights. The law recognizes that a supervisor can act through others, setting in motion a series of acts by subordinates that the supervisor knows, or reasonably should know, would cause the subordinates to violate the plaintiff’s rights. Thus, [plaintiff] can show that [supervisor] caused the conduct if [plaintiff] shows that [subordinate] violated [plaintiff’s] rights at [supervisor’s] direction.

Alternatively, the second way for [plaintiff] to show that [supervisor] is liable for [subordinate’s] conduct is to show that [supervisor] had actual knowledge of [subordinate’s] violation of [plaintiff’s] rights and that [supervisor] acquiesced in that violation. To “acquiesce” in a violation means to give assent to the violation. Acquiescence does not require a statement of assent, out loud: acquiescence can occur through silent acceptance. If you find that [supervisor] had authority over [subordinate] and that [supervisor] actually knew that [subordinate] was violating [plaintiff’s] rights but failed to stop [subordinate] from doing so, you may infer that [supervisor] acquiesced in [subordinate’s] conduct.

Finally, the third way for [plaintiff] to show that [supervisor] is liable for [subordinate’s] conduct is to show that [supervisor], with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused the conduct. [Plaintiff] alleges that [supervisor] should have [adopted a practice of] [followed the existing policy of] [describe supervisory practice or policy that plaintiff contends supervisor should have adopted or followed].

To prove that [supervisor] is liable for [subordinate’s] conduct based on [supervisor’s] failure to [adopt that practice] [follow that policy], [plaintiff] must prove all of the following four things by a preponderance of the evidence:

First: [The existing custom and practice without [describe supervisory practice]] [the failure to follow the policy of [describe policy]] created an unreasonable risk of [describe violation].

Second: [Supervisor] was aware that this unreasonable risk existed.

Third: [Supervisor] was deliberately indifferent to that risk.

Fourth: [Subordinate’s] [describe violation] resulted from [supervisor’s] failure to [adopt [describe supervisory practice]] [follow [describe policy]].



COMMENT Note concerning Instruction 4.6.1 and Ashcroft v. Iqbal:

Instruction 4.6.1 was originally drafted based on Third Circuit law prior to Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Iqbal involved the request by John Ashcroft and Robert Mueller for review of the denial of their motions to dismiss the claims of Javaid Iqbal, who alleged that Ashcroft and Mueller “adopted an unconstitutional policy that subjected [him] to harsh conditions of confinement on account of his race, religion, or national origin” in the wake of September 11, 2001. Iqbal, 129 S. Ct. at 1942. In Iqbal, a closely-divided Court concluded that “vicarious liability is inapplicable to Bivens and § 1983 suits” and that therefore “a plaintiff must plead that each Government official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948. It is not yet clear what Iqbal’s implications are for the theories of supervisors’ liability that had previously been in use in the Third Circuit.60

A theory of liability based on the supervisor’s direction to a subordinate to take the action that violates the plaintiff’s rights would seem viable after Iqbal (subject to a caveat, noted below, concerning levels of scienter); such a theory is reflected in the first of the three alternatives stated in Instruction 4.6.1. The second and third alternatives stated in Instruction 4.6.1, by contrast, may be more broadly affected by Iqbal. Versions of those alternative theories – a knowledge-and-acquiescence theory61 and a deliberate-indifference theory – were invoked by the plaintiff and the dissenters in Iqbal; accordingly, the Iqbal majority’s conclusion that the plaintiff had failed to state a claim, coupled with the majority’s statements concerning the non-existence of vicarious liability, might be read to cast some question on the viability of those two alternatives.

However, the scope of Iqbal’s holding is subject to dispute. Though dictum in Iqbal addresses Section 1983 claims, the holding concerns Bivens claims. Though Iqbal purports to outlaw “vicarious liability” in both types of cases, it cites Monell with approval and indicates no intent to displace existing doctrines of municipal liability (which are, in their conceptual structure, quite similar to the theories of supervisor liability discussed in Instruction 4.6.1 and this Comment).62 And Iqbal itself concerned a type of constitutional violation – discrimination on the basis of race, religion and/or national origin – that requires a showing of “discriminatory purpose”; it is possible to read Iqbal as turning upon the notion that, to be liable for a subordinate’s constitutional violation, the supervisor must have the same level of scienter as is required to establish the underlying constitutional violation.63 On that reading, a claim that requires a lesser showing of scienter for the underlying violation – for example, a Fourth Amendment excessive force claim – might have different implications (for purposes of the supervisor’s liability) than a claim that requires a showing of purposeful discrimination for the underlying violation.

The court of appeals has begun to settle some of these issues. In Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014)">Barkes v. First Correctional Medical, 766 F.3d 307 (3d Cir. 2014), rev’d on other grounds, 135 S. Ct. 2042 (2015), it applied Iqbal to a section 1983 action. In addition, it held, as suggested above, that, “under Iqbal, the level of intent necessary to establish supervisory liability will vary with the underlying constitutional tort alleged.” Id. at 319. The underlying constitutional tort in Barkes was “the denial of adequate medical care in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment, and the accompanying mental state is subjective deliberate indifference.” Id. It therefore held that the standard previously announced in Sample v. Diecks, 885 F.2d 1099, 1117-18 (3d Cir. 1989), for imposing supervisory liability based on an Eighth Amendment violation is consistent with Iqbal. It left for another day the question whether and under what circumstances a claim for supervisory liability derived from a violation of a different constitutional provision remains valid. See also Chavarriaga v. New Jersey Dept. of Corr., 806 F.3d 210 (3d Cir. 2015) (applying Sample to Eighth Amendment claims and stating that “liability under 1983 may be imposed on an official with final policymaking authority if that official establishes an unconstitutional policy that, when implemented, injures a plaintiff”); cf. Palakovic v. Wetzel, 854 F.3d 209, 225 n.17 (3d Cir. 2017) (noting that Iqbal may have called into question “whether a supervisor may be held indirectly liable for deficient policies under Sample,” but avoiding that question because the complaint was sufficient to support a direct claim against prison supervisors under the deliberate indifference test of Farmer v. Brennan, 511 U.S. 825 (1994)).

Palakovic concluded that supervisors could be directly liable because of allegations that a prisoner diagnosed with serious mental health issues was placed in solitary confinement and “the increasingly obvious reality that extended stays in solitary confinement can cause serious damage to mental health.” 854 F.3d at 226. For similar reasons, it held that a failure to train claim against supervisory defendants was sufficient because of allegations that the supervisors “provided essentially no training on suicide, mental health, or the impact of solitary confinement, and simply acquiesced in the repeated placement of mentally ill prisoners... in solitary confinement.” Id. at 234. Similarly, in Wharton v. Danberg, 854 F.3d 234, 243 (3d Cir. 2017), the court of appeals stated that “supervisors are liable only for their own acts,” and that in the context of a case involving the detention of prisoners beyond when they should be released, are liable only if they acted with deliberate indifference to the constitutional harm done by their policy, practice, or custom. See also E. D. v. Sharkey, 928 F.3d 299, 309 (3d Cir. 2019) (holding that “there is enough evidence to support an inference that the Defendants knew of the risk facing [an immigration detainee], and that their failure to take additional steps to protect her — acting in their capacity as either a co-worker or supervisor — could be viewed by a factfinder as the sort of deliberate indifference to a detainee’s safety that the Constitution forbids”) (internal quotation marks omitted). Cf. Ziglar v. Abbasi, 137 S. Ct. 1843, 1864 (2017) (assuming, without deciding, that the substantive standard for a Bivens claim against a warden for allowing prison guards to abuse detainees would be whether the warden showed “deliberate indifference” to prisoner abuse while stating that “a Bivens claim is brought against the individual official for his or her own acts, not the acts of others,” and that “Bivens is not designed to hold officers responsible for acts of their subordinates”).

In Parkell v. Danberg, 833 F.3d 313, 331 (3d Cir. 2016), the court of appeals held that a supervisor who “passively permits his subordinates to implement a policy that was set by someone else and is beyond the official’s authority to change” is not subject to supervisory liability. A prison warden who knew about a search practice was not subject to supervisory liability because the plaintiff failed to point to “any evidence of where the search policy, practice, or custom came from,” and it might have been established by the Department of Corrections, leaving the warden with no authority to change it. Id. at 331. Parkell also held that the standard for supervisory liability does not apply to injunctions, so that the defendants’ lack of “personal involvement in past constitutional violations does not preclude... prospective injunctive relief” against a defendant. Id. at 332. See also Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016) (affirming the dismissal of a claim against a warden and deputy warden because the “complaint makes clear that [the plaintiff] only spoke to these defendants after the alleged retaliation occurred,” and provides no basis for inferring that they “were personally involved in any purported retaliation”), overruled on other grounds, Mack v. Yost, 968 F.3d 311 (3d Cir. 2020).

Pending further guidance from the Supreme Court or the court of appeals, the Committee decided to alert readers to these issues without attempting to anticipate the further development of the law in this area. In determining whether to employ some or all portions of Instruction 4.6.1, courts should give due attention to the implications of Iqbal for the particular type of claim at issue. See also Wood v. Moss, 134 S. Ct. 2056 (2014) (relying on Iqbal in a case alleging viewpoint discrimination and declining to infer from alleged misconduct by some Secret Service agents an unwritten Secret Service policy to “suppress disfavored expression, and then to attribute that supposed policy to all field-level operatives”).

The remainder of this Comment discusses Third Circuit law as it stood prior to Iqbal.

Discussion of pre-Iqbal caselaw

A supervisor incurs Section 1983 liability in connection with the actions of another only if he or she had “personal involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). In the Third Circuit,64 “[p]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Id.; see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”); Baker v. Monroe Tp., 50 F.3d 1186, 1194 (3d Cir. 1995) (noting that “actual knowledge can be inferred from circumstances other than actual sight”); A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 586 (3d Cir. 2004) (noting that “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations”); Black v. Stephens, 662 F.2d 181, 189 (3d Cir. 1981) (“To hold a police chief liable under section 1983 for the unconstitutional actions of one of his officers, a plaintiff is required to establish a causal connection between the police chief's actions and the officer's unconstitutional activity.”). The model instruction is designed for cases in which the plaintiff does not assert that the supervisor directly participated in the activity; if the plaintiff provides evidence of direct participation, the instruction can be altered to reflect that direct participation by the supervisor is also a basis for liability.

A number of circumstances may bear upon the determination concerning actual knowledge. See, e.g., Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003) (holding, with respect to commissioner of state department of corrections, that “[t]he scope of his responsibilities are much more narrow than that of a governor or state attorney general, and logically demand more particularized scrutiny of individual complaints”).

As to acquiescence, “[w]here a supervisor with authority over a subordinate knows that the subordinate is violating someone's rights but fails to act to stop the subordinate from doing so, the factfinder may usually infer that the supervisor ‘acquiesced’ in (i.e., tacitly assented to or accepted) the subordinate's conduct.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997).

A supervisor with policymaking authority may also, in an appropriate case, be liable based on the failure to adopt a policy.65 See A.M. ex rel. J.M.K., 372 F.3d at 586 (“Individual defendants who are policymakers may be liable under § 1983 if it is shown that such defendants, ‘with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm. ’”) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir.1989)). The analysis of such a claim appears to track the deliberate indifference analysis employed in the context of municipal liability. See id. (holding that summary judgment for the supervisors in their individual capacities was inappropriate, “[g]iven our conclusion that A.M. presented sufficient evidence to present a jury question on” the issue of municipal liability for failure to adopt adequate policies); Sample v. Diecks, 885 F.2d 1099, 1117-18 (3d Cir. 1989) (“Although the issue here is one of individual liability rather than of the liability of a political subdivision, we are confident that, absent official immunity, the standard of individual liability for supervisory public officials will be found to be no less stringent than the standard of liability for the public entities that they serve.”); see also id. at 1118 (holding that “a judgment could not properly be entered against Robinson in this case based on supervisory liability absent an identification by Sample of a specific supervisory practice or procedure that Robinson failed to employ and specific findings by the district court that (1) the existing custom and practice without that specific practice or procedure created an unreasonable risk of prison overstays, (2) Robinson was aware that this unreasonable risk existed, (3) Robinson was indifferent to that risk, and (4) Diecks' failure to assure that Sample's complaint received meaningful consideration resulted from Robinson's failure to employ that supervisory practice or procedure”).

(Last Updated July 2019)

Footnotes

60 For cases indicating that some or all of the Third Circuit’s supervisory-liability standards survive Iqbal, see, e.g., McKenna v. City of Philadelphia, 582 F.3d 447, 460-61 (3d Cir. 2009) (upholding grant of judgment as a matter of law to defendants on supervisory liability claims and explaining that “[t]o be liable in this situation, a supervisor must have been involved personally, meaning through personal direction or actual knowledge and acquiescence, in the wrongs alleged”); Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010) (applying the framework set by Baker v. Monroe Tp., 50 F.3d 1186 (3d Cir. 1995), and affirming dismissal of supervisory-liability claim based on lack of evidence “that Mannell directed Evanson to take or not to take any particular action concerning Reedy that would amount to a violation of her constitutional rights”); Marrakush Soc. v. New Jersey State Police, 2009 WL 2366132, at *31 (D.N.J. July 30, 2009) (“Personal involvement can be asserted through allegations of facts showing that a defendant directed, had actual knowledge of, or acquiesced in, the deprivation of a plaintiff's constitutional rights.”).

For decisions that noted the question whether those standards survive Iqbal, see Santiago v. Warminster Twp., 629 F.3d 121, 130 n.8 (3d Cir. 2010) (“Numerous courts, including this one, have expressed uncertainty as to the viability and scope of supervisory liability after Iqbal.... Because we hold that Santiago's pleadings fail even under our existing supervisory liability test, we need not decide whether Iqbal requires us to narrow the scope of that test.”); Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 70 (3d Cir. 2011) (“To date, we have refrained from answering the question of whether Iqbal eliminated – or at least narrowed the scope of – supervisory liability because it was ultimately unnecessary to do so in order to dispose of the appeal then before us.... We likewise make the same choice here....”).

61 Cf. Bayer v. Monroe County Children and Youth Services, 577 F.3d 186, 190 n.5 (3d Cir. 2009) (“The [district] court concluded that plaintiffs had created a triable issue ‘as to whether Defendant Bahl had personal knowledge regarding the Fourteenth Amendment procedural due process violation.’ In light of the Supreme Court's recent decision in [Iqbal], it is uncertain whether proof of such personal knowledge, with nothing more, would provide a sufficient basis for holding Bahl liable with respect to plaintiffs' Fourteenth Amendment claims under § 1983.... We need not resolve this matter here, however.”).
62 Cf., e.g., Horton v. City of Harrisburg, 2009 WL 2225386, at *5 (M.D.Pa. July 23, 2009) (“Supervisory liability under § 1983 utilizes the same standard as municipal liability. See Iqbal.... Therefore, a supervisor will only be liable for the acts of a subordinate if he fosters a policy or custom that amounts to deliberate indifference towards an individual's constitutional rights.”).
63 In cases where the underlying constitutional violation requires a showing of purposeful discrimination, Iqbal thus appears to heighten the standard for supervisors’ liability even under the first of the three theories described in Instruction 4.6.1.
64 See Baker v. Monroe Tp., 50 F.3d 1186, 1194 n.5 (3d Cir. 1995) (noting that “other circuits have developed broader standards for supervisory liability under section 1983”).
65 When a supervisor with policymaking authority is sued on a failure-to-train theory, the standard appears to be the same as for municipal liability. See Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005) (“A supervising authority may be liable under § 1983 for failing to train police officers when the failure to train demonstrates deliberate indifference to the constitutional rights of those with whom the officers may come into contact.”); see also infra Comment 4.6.7 (discussing municipal liability for failure to train).

4 PJI 6.2 | SECTION 1983 – FAILURE TO INTERVENE

[Plaintiff] contends that [third person] violated [plaintiff’s] [specify right] and that [defendant] should be liable for that violation because [defendant] failed to intervene to stop the violation.

[Defendant] is liable for that violation if plaintiff has proven all of the following four things by a preponderance of the evidence:

First: [Third person] violated [plaintiff’s] [specify right].

Second: [Defendant] had a duty to intervene. [I instruct you that [police officers] [corrections officers] have a duty to intervene to prevent the use of excessive force by a fellow officer.] [I instruct you that prison guards have a duty to intervene during an attack by an inmate in the prison in which they work.]

Third: [Defendant] had a reasonable opportunity to intervene.

Fourth: [Defendant] failed to intervene.


COMMENT A defendant can in appropriate circumstances be held liable for failing to intervene to stop a beating. See, e.g., Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002) (holding that “a corrections officer's failure to intervene in a beating can be the basis of liability for an Eighth Amendment violation under § 1983 if the corrections officer had a reasonable opportunity to intervene and simply refused to do so,” and that “a corrections officer can not escape liability by relying upon his inferior or non supervisory rank vis a vis the other officers”); Bistrian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012) (“extending [the Smith v. Mensinger] standard to inmate-on-inmate attacks”); Williams v. Fields, 535 Fed. Appx. 205 (3d Cir. 2013) (non-precedential opinion) (reversing grant of judgment as a matter of law because jury could have “reasonably inferred” that officer “must have seen” the beating by other officers “and declined to intervene”). Cf. Ricks v. Shover, 891 F.3d 468, 479 (3d Cir. 2018) (holding that a failure to intervene claim was properly dismissed because the “encounter was so brief” that the officer “simply would have had no opportunity to instruct” the other officer to stop). See also E. D. v. Sharkey, 928 F.3d 299, 309 (3d Cir. 2019) (holding that “there is enough evidence to support an inference that the Defendants knew of the risk facing [an immigration detainee], and that their failure to take additional steps to protect her — acting in their capacity as either a co-worker or supervisor — could be viewed by a factfinder as the sort of deliberate indifference to a detainee’s safety that the Constitution forbids”) (internal quotation marks omitted).
(Last Updated July 2019)

4 PJI 6.3 | SECTION 1983 – MUNICIPALITIES – GENERAL INSTRUCTION

66If you find that [plaintiff] was deprived of [describe federal right], [municipality] is liable for that deprivation if [plaintiff] proves by a preponderance of the evidence that the deprivation resulted from [municipality’s] official policy or custom – in other words, that [municipality’s] official policy or custom caused the deprivation.

[It is not enough for [plaintiff] to show that [municipality] employed a person who violated [plaintiff’s] rights. [Plaintiff] must show that the violation resulted from [municipality’s] official policy or custom.] “Official policy or custom” includes any of the following [include any of the following theories that are warranted by the evidence]:

• a rule or regulation promulgated, adopted, or ratified by [municipality’s] legislative body;

• a policy statement or decision that is officially made by [municipality’s] [policy making official];

• a custom that is a widespread, well settled practice that constitutes a standard operating procedure of [municipality]; or

• [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] [failure to adopt a needed policy]. However, [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] [failure to adopt a needed policy] does not count as “official policy or custom” unless the [municipality] is deliberately indifferent to the fact that a violation of [describe the federal right] is a highly predictable consequence of the [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] [failure to adopt a needed policy]. I will explain this further in a moment.


I will now proceed to give you more details on [each of] the way[s] in which [plaintiff] may try to establish that an official policy or custom of [municipality] caused the deprivation.

COMMENT “[M]unicipalities and other local government units [are] included among those persons to whom § 1983 applies.” Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690 (1978) (overruling in relevant part Monroe v. Pape, 365 U.S. 167 (1961)). However, “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691.67 “Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694.68 The Court has elaborated several ways in which a municipality can cause a violation and thus incur liability. See Instructions 4.6.4 - 4.6.8 and accompanying Comments for further details on each theory of liability.

Ordinarily, proof of municipal liability in connection with the actions of ground-level officers will require, inter alia, proof of a constitutional violation by one or more of those officers.69 See, e.g., Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003) (“There cannot be an ‘award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm. ’”) (quoting City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam)). In Fagan v. City of Vineland, however, the court held that “a municipality can be liable under section 1983 and the Fourteenth Amendment for a failure to train its police officers with respect to high speed automobile chases, even if no individual officer participating in the chase violated the Constitution.” Fagan v. City of Vineland, 22 F.3d 1283, 1294 (3d Cir. 1994). A later Third Circuit panel suggested that the court erred in Fagan when it dispensed with the requirement of an underlying constitutional violation. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1153 n.13 (3d Cir. 1995) (“It appears that, by focusing almost exclusively on the ‘deliberate indifference’ prong... , the panel opinion did not apply the first prong – establishing an underlying constitutional violation.”). It appears that the divergence between Fagan and Mark reflects a distinction between cases in which the municipality’s liability is derivative of the violation(s) by the ground-level officer(s) and cases in which the plaintiff seeks to show that the municipality’s conduct itself is unconstitutional: As the court explained in Grazier, “We were concerned in Fagan that, where the standard for liability is whether state action ‘shocks the conscience,’ a city could escape liability for deliberately malicious conduct by carrying out its misdeeds through officers who do not recognize that their orders are unconstitutional and whose actions therefore do not shock the conscience.” Grazier, 328 F.3d at 124 n.5 (stating that the holding in Fagan was “carefully confined... to its facts: a substantive due process claim resulting from a police pursuit,” and holding that Fagan did not apply to “a Fourth Amendment excessive force claim”). See also Thomas v. Cumberland County, 749 F.3d 217 (3d Cir. 2014) (reversing a grant of summary judgment for county, even though the two individual officer defendants prevailed, without discussing whether the county’s liability requires proof of a constitutional violation by an individual officer); Barna v. Board of School Directors of the Panther Valley School District, 877 F.3d 136, 145, n.6 (3d Cir. 2017) (stating that “‘precedent in our circuit requires the district court to review the plaintiffs’ municipal liability claims independently of the section 1983 claims against the individual... officers.’”) (quoting Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996)); Lozman v. City of Riviera Beach, Fla., 138 S. Ct. 1945 (2018) (holding that a plaintiff suing a municipality for arresting him in retaliation for his exercise of First Amendment rights, where municipal liability was predicated on a policy adopted by the municipal legislators, need not show that the arrest was without probable cause, while reserving the question whether probable cause would defeat a First Amendment retaliation claim against an individual officer).

In addition to showing the existence of an official policy or custom, plaintiff must prove “that the municipal practice was the proximate cause of the injuries suffered.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). “To establish the necessary causation, a plaintiff must demonstrate a ‘plausible nexus’ or ‘affirmative link’ between the municipality's custom and the specific deprivation of constitutional rights at issue.” Id. (quoting City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985); and Estate of Bailey by Oare v. County of York, 768 F.2d 503, 507 (3d Cir.1985), overruled on other grounds by DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989)); see also Bielevicz, 915 F.2d at 851 (holding that “plaintiffs must simply establish a municipal custom coupled with causation – i.e., that policymakers were aware of similar unlawful conduct in the past, but failed to take precautions against future violations, and that this failure, at least in part, led to their injury”); Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004) (“There must be ‘a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. ’”) (quoting Brown v. Muhlenberg Township, 269 F.3d 205, 214 (3d Cir. 2001) (quoting Canton, 489 U.S. at 385)). “As long as the causal link is not too tenuous, the question whether the municipal policy or custom proximately caused the constitutional infringement should be left to the jury.” Bielevicz, 915 F.2d at 851. “A sufficiently close causal link between... a known but uncorrected custom or usage and a specific violation is established if occurrence of the specific violation was made reasonably probable by permitted continuation of the custom.” Id. (quoting Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987)); see also A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 582 (3d Cir. 2004) (“The deficiency of a municipality's training program must be closely related to the plaintiff's ultimate injuries.”).

In the case of claims (such as failure-to-train claims) that require proof of deliberate indifference, evidence that shows deliberate indifference will often help to show causation as well. Reflecting on failure-to-train cases, the Court has observed:
The likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that situation will violate citizens' rights could justify a finding that policymakers' decision not to train the officer reflected "deliberate indifference" to the obvious consequence of the policymakers' choice – namely, a violation of a specific constitutional or statutory right. The high degree of predictability may also support an inference of causation – that the municipality's indifference led directly to the very consequence that was so predictable. Board of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 409-10 (1997).

This Instruction, as well as Instruction 4.6.7, treats inadequate training and supervision claims as types of policy claims. In explaining how a municipality can be held liable for inadequate training, the Supreme Court stated:
Monell’s rule that a city is not liable under § 1983 unless a municipal policy causes a constitutional deprivation will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city is responsible. That much may be true. The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent “city policy.” It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury. City of Canton, Ohio v. Harris, 489 U.S. 378, 389–90 (1989) (footnotes omitted). See also Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev’d on other grounds, 575 U.S. 822 (2015) (“‘Failure to’ claims — failure to train, failure to discipline, or, as is the case here, failure to supervise — are generally considered a subcategory of policy or practice liability.”).

In Forrest v. Parry, 930 F.3d 93, 105–06 (3d Cir. 2019), the Court of Appeals sharply distinguished between (1) policy or custom claims and (2) failure to train or supervise claims:
[A] § 1983 claim against a municipality may proceed in two ways. A plaintiff may put forth that an unconstitutional policy or custom of the municipality led to his or her injuries, or that they were caused by a failure or inadequacy by the municipality that “reflects a deliberate or conscious choice.”

Plaintiffs that proceed under a municipal policy or custom theory must make showings that are not required of those who proceed under a failure or inadequacy theory, and vice versa. Notably, an unconstitutional municipal policy or custom is necessary for the former theory, but not for the latter, failure or inadequacy theory.... On the other hand, one whose claim is predicated on a failure or inadequacy has the separate, but equally demanding requirement of demonstrating a failure or inadequacy amounting to deliberate indifference on the part of the municipality.... Although we have acknowledged the close relationship between policy-and-custom claims and failure-or-inadequacy claims [citing Barkes], the avenues remain distinct: a plaintiff alleging that a policy or custom led to his or her injuries must be referring to an unconstitutional policy or custom, and a plaintiff alleging failure-to-supervise, train, or discipline must show that said failure amounts to deliberate indifference to the constitutional rights of those affected.
930 F.3d at 105–06.

Forrest found plain error in a jury instruction, in part because the instruction created “confusion as to whether the policy or custom finding is antecedent to reaching the deliberate indifference inquiry, or if the two are intertwined in some other way.” Id. at 118.

In light of Forrest, a district court might consider avoiding such confusion by keeping any instruction on a policy or custom claim distinct from any instruction on an inadequate training or supervision claim. It may not be necessary for a jury to know that an inadequate training or supervision claim can be understood as a species of policy claim. After all, the Harris opinion itself observed that it “may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees.” 489 U.S. at 389–90.


(Last Updated July 2019)

Footnotes

66 Where the jury is being instructed on a theory of inadequate training or supervision, consider omitting this sentence. See discussion in the Comment of Forrest v. Parry, 930 F.3d 93 (2019).
67 Consider omitting this paragraph in order to keep instructions about policy and custom claims separate from instructions about inadequate training or supervision claims addressed in Instruction 4.6.7. See discussion in the Comment of Forrest v. Parry, 930 F.3d 93 (2019).
68 A suit against a municipal policymaking official in her official capacity is treated as a suit against the municipality. See A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 580 (3d Cir. 2004).

A similar principle applies to claims against a private corporation providing medical services under contract with a state prison system. Palakovic v. Wetzel, 854 F.3d 209, 232 (3d Cir. 2017) (holding that to state such a claim, “a plaintiff must allege a policy or custom that resulted in the alleged constitutional violations at issue”) (citing Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003)).

Monell’s ‘policy or custom’ requirement applies in § 1983 cases irrespective of whether the relief sought is monetary or prospective.” Los Angeles County v. Humphries, 131 S. Ct. 447, 453-54 (2010).

69 See, e.g., Vargas v. City of Philadelphia, 783 F.3d 962, 975 (3d Cir. 2015) (“Because the officers did not violate any of her constitutional rights... there was no violation for which the City of Philadelphia could be held responsible.”); Mulholland v. Government County of Berks, 706 F.3d 227, 238 n.15 (3d Cir. 2013) (“It is well-settled that, if there is no violation in the first place, there can be no derivative municipal claim.”); id. at 244 n.24 (“Given our disposition of the underlying substantive due process claim... we need not address the Monell analysis....”); Startzell v. City of Philadelphia, 533 F.3d 183, 204 (3d Cir. 2008) (“Because we have found that there was no violation of Appellants' constitutional rights, we need not reach the claim against the City under Monell.”).

4 PJI 6.4 | SECTION 1983 – MUNICIPALITIES – STATUTE, ORDINANCE OR REGULATION

In this case, there was a [statute] [ordinance] [regulation] that authorized the action which forms the basis for [plaintiff’s] claim. I instruct you to find that [municipality] caused the action at issue.
COMMENT It is clear that a municipality’s legislative action constitutes government policy. “No one has ever doubted... that a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body – whether or not that body had taken similar action in the past or intended to do so in the future – because even a single decision by such a body unquestionably constitutes an act of official government policy.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). Likewise, if the legislative body delegates authority to a municipal agency or board, an action by that agency or board also constitutes government policy. See, e.g., Monell v. Department of Social Services of City of New York, 436 U.S. 658, 660-61 & n.2 (1978) (describing actions by Department of Social Services and Board of Education of the City of New York); id. at 694 (holding that “this case unquestionably involves official policy”).

On the other hand, where an ordinance is facially valid, the mere existence of the ordinance itself will not provide a basis for municipal liability for a claim concerning discriminatory enforcement. See Brown v. City of Pittsburgh, 586 F.3d 263, 292-94 (3d Cir. 2009).

(Last Updated July 2019)

4 PJI 6.5 | SECTION 1983 – MUNICIPALITIES – CHOICE BY POLICYMAKING OFFICIAL

The [governing body] of the [municipality] is a policymaking entity whose actions represent a decision by the government itself. The same is true of an official or body to whom the [governing body] has given final policymaking authority: The actions of that official or body represent a decision by the government itself.

Thus, when [governing body] or [policymaking official] make a deliberate choice to follow a course of action, that choice represents an official policy. Through such a policy, the [governing body] or the [policymaking official] may cause a violation of a federal right by:

• directing that the violation occur,

• authorizing the violation, or

• agreeing to a subordinate’s decision to engage in the violation.


[The [governing body] or [policymaking official] may also cause a violation through [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] [failure to adopt a needed policy], but only if the [municipality] is deliberately indifferent to the fact that a violation of [describe the federal right] is a highly predictable consequence of the [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] [failure to adopt a needed policy]. I will instruct you further on this in a moment.]

I instruct you that [name(s) of official(s) and/or governmental bodies] are policymakers whose deliberate choices represent official policy. If you find that such an official policy was the cause of and the moving force behind the violation of [plaintiff’s] [specify right], then you have found that [municipality] caused that violation.

COMMENT A deliberate choice by an individual government official constitutes government policy if the official has been granted final decision-making authority concerning the relevant area or issue. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996); see also LaVerdure v. County of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003) (“Even though Marino himself lacked final policymaking authority that could bind the County, LaVerdure could have demonstrated that the Board delegated him the authority to speak for the Board or acquiesced in his statements.”). In this context, “municipal liability under § 1983 attaches where – and only where – a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion); see also Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996) (“In order to ascertain who is a policymaker, ‘a court must determine which official has final, unreviewable discretion to make a decision or take action. ’”) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1481 (3d Cir. 1990)). “[W]hether a particular official has ‘final policymaking authority’ is a question of state law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion); see also McMillian v. Monroe County, Ala., 520 U.S. 781, 786 (1997) (“This is not to say that state law can answer the question for us by, for example, simply labeling as a state official an official who clearly makes county policy. But our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official's functions under relevant state law.”).70 “As with other questions of state law relevant to the application of federal law, the identification of those officials whose decisions represent the official policy of the local governmental unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury.” Jett v. Dallas Independent School Dist., 491 U.S. 701, 737 (1989).
[T]he trial judge must identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue. Once those officials who have the power to make official policy on a particular issue have been identified, it is for the jury to determine whether their decisions have caused the deprivation of rights at issue by policies which affirmatively command that it occur... , or by acquiescence in a longstanding practice or custom which constitutes the “standard operating procedure” of the local governmental entity. Id. Not only must the official have final policymaking authority, the official must be considered to be acting as a municipal official rather than a state official in order for municipal liability to attach. See McMillian, 520 U.S. at 793 (holding that “Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties”).

Instruction 4.6.5 notes that a policymaker may cause a violation of a federal right by directing that the violation occur, authorizing the violation, or agreeing to a subordinate’s decision to engage in the violation. With respect to the third option – agreement to a subordinate’s decision – the relevant agreement can sometimes occur after the fact. Thus, for example, the plurality in Praprotnik observed that “when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion); see also Brennan v. Norton, 350 F.3d 399, 427-28 (3d Cir. 2003) (citing Praprotnik); LaVerdure v. County of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003) (“Even though Marino himself lacked final policymaking authority that could bind the County, LaVerdure could have demonstrated that the Board delegated him the authority to speak for the Board or acquiesced in his statements.”); Andrews v. City of Philadelphia, 895 F.2d 1469, 1481 (3d Cir. 1990) (“The second means of holding the municipality liable is if Tucker knowingly acquiesced to the decisions made at AID.”). In an appropriate case, Instruction 4.6.5 may be modified to refer to a policymaker’s “agreeing after the fact to a subordinate’s decision to engage in the violation.”

(Last Updated July 2019)

Footnotes

70 See McGreevy v. Stroup, 413 F.3d 359, 369 (3d Cir. 2005) (analyzing Pennsylvania law and concluding that “[b]ecause the school superintendent is a final policymaker with regard to ratings, his ratings and/or those of the school principal constitute official government policy”).

4 PJI 6.6 | SECTION 1983 – MUNICIPALITIES – CUSTOM

[Plaintiff] may prove the existence of an official custom by showing the existence of a practice that is so widespread and well settled that it constitutes a standard operating procedure of [municipality]. A single action by a lower level employee does not suffice to show an official custom. But a practice may be an official custom if it is so widespread and well-settled as to have the force of law, even if it has not been formally approved. [You may find that such a custom existed if there was a practice that was so well settled and widespread that the policymaking officials of [municipality] either knew of it or should have known of it.71 [I instruct you that [name official(s)] [is] [are] the policymaking official[s] for [describe particular subject].72]]

If you find that such an official custom was the cause of and the moving force behind the violation of [plaintiff’s] [specify right], then you have found that [municipality] caused that violation.

COMMENT Even in the absence of an official policy, a municipality may incur liability if an official custom causes a constitutional tort. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).73 “Custom... can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well settled and permanent as virtually to constitute law.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990); see also Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404 (1997) (“[A]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.”).

As these statements suggest, evidence of a single incident without more will not suffice to establish the existence of a custom: “A single incident by a lower level employee acting under color of law... does not suffice to establish either an official policy or a custom. However, if custom can be established by other means, a single application of the custom suffices to establish that it was done pursuant to official policy and thus to establish the agency's liability.” Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989) (citing Oklahoma City v. Tuttle, 471 U.S. 808 (1985) (plurality opinion)). For example, plaintiff can present evidence of a pattern of similar incidents and inadequate responses to those incidents in order to demonstrate custom through municipal acquiescence. See Beck, 89 F.3d at 972 (“These complaints include the Debold incident, which, although it occurred after Beck's experience, may have evidentiary value for a jury's consideration whether the City and policymakers had a pattern of tacitly approving the use of excessive force.”).

The weight of Third Circuit caselaw indicates that the plaintiff must make some showing that a policymaking official knew of the custom and acquiesced in it.74 Language in Jett v. Dallas Independent School District, 491 U.S. 701 (1989), could be read to contemplate such a requirement, though the Jett Court did not have occasion to consider that issue in detail.75 In a number of subsequent cases, the Court of Appeals has read Jett to require knowledge and acquiescence. In Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990), the Court of Appeals affirmed the grant of j.n.o.v. in favor of the City on the plaintiffs’ Section 1983 claims of sexual harassment by their coworkers and supervisors. The court stressed that to establish municipal liability “it is incumbent upon a plaintiff to show that a policymaker is responsible either for the policy or, through acquiescence, for the custom.” Id. at 1480. Thus, “given the jury verdict in favor of [Police Commissioner] Tucker, the lowest level policymaker implicated,” j.n.o.v. for the City was warranted. Id. at 1480; see also Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007) (citing Andrews with approval). In Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991), a fractured court affirmed a judgment in favor of the mother of a man who committed suicide while detained in a city jail. See id. at 1048. Judge Becker, announcing the judgment of the court, viewed Jett as holding “that even when a plaintiff alleges that a municipal custom or practice, as opposed to a municipal policy, worked a constitutional deprivation, the plaintiff must both identify officials with ultimate policymaking authority in the area in question and adduce scienter like evidence – in this case of acquiescence – with respect to them.” Simmons, 947 F.2d at 1062 (opinion of Becker, J.). Chief Judge Sloviter wrote separately to stress that officials’ reckless disregard of conditions of which they should have known should suffice to meet the standard, see id. at 1089-91 (Sloviter, C.J., concurring in part and in the judgment), but she did not appear to question the view that some sort of knowledge and acquiescence was required. Citing Andrews and Simmons, the court in Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995), held that the plaintiffs “must show that a policymaker for the Township authorized policies that led to the violations or permitted practices that were so permanent and well settled as to establish acquiescence,” id. at 1191.76 See also Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996) (“[A] prerequisite to establishing [municipal] liability... is a showing that a policymaker was responsible either for the policy or, through acquiescence, for the custom.”).

Though it thus appears that a showing of knowledge and acquiescence is required, a number of cases suggest that actual knowledge need not be proven.77 Rather, some showing of constructive knowledge may suffice; this view is reflected in the first bracketed sentence in Instruction 4.6.6. For example, the court seemed to approve a constructive-knowledge standard in Bielevicz v. Dubinon, 915 F.2d 845 (3d Cir. 1990). Citing Andrews and Jett, the court stated that the “plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well settled custom.” Bielevicz, 914 F.2d at 850.78 But the Bielevicz court took care to note that “[t]his does not mean... that the responsible decisionmaker must be specifically identified by the plaintiff's evidence. Practices so permanent and well settled as to have the force of law [are] ascribable to municipal decisionmakers.” Id. (internal quotation marks omitted).79 The Bielevicz court then proceeded to discuss ways of showing that the municipal custom caused the constitutional violation, and explained that policymakers’ failure to respond appropriately to known past violations could provide the requisite evidence of causation: “If the City is shown to have tolerated known misconduct by police officers, the issue whether the City's inaction contributed to the individual officers' decision to arrest the plaintiffs unlawfully in this instance is a question of fact for the jury.” Id. at 851. In Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996), the court stated that custom can be shown when government officials’ practices are “so permanent and well settled as to virtually constitute law,” id. (internal quotation marks omitted), and then continued: “Custom... may also be established by evidence of knowledge and acquiescence.” Id.80 In holding that the plaintiffs were entitled to reach a jury on their claims, the Beck court focused on evidence “that the Chief of Police of Pittsburgh and his department knew, or should have known, of Officer Williams's violent behavior in arresting citizens,” id. at 973 – suggesting that the Beck court applied a constructive-knowledge test. Likewise, in Berg v. County of Allegheny, 219 F.3d 261 (2000), the court focused on whether municipal policymakers had either actual or constructive knowledge of the practice for issuing warrants. See id. at 276 (“We believe it is a more than reasonable inference to suppose that a system responsible for issuing 6,000 warrants a year would be the product of a decision maker's action or acquiescence.”). Similarly, in Estate of Roman v. Newark, 914 F.3d 789 (3d Cir. 2019), the court specifically stated that while the plaintiff must demonstrate that the city had knowledge of similar unlawful conduct in the past, he “does not need to identify a responsible decisionmaker in his pleadings.” Id. at 798. The court relied in part on a consent decree between the Department of Justice and Newark in holding that a complaint alleging a custom of unconstitutional arrests was sufficient, where violations were widespread, and the Police Department was aware of them but rarely acted on citizen complaints. Id. at 799.

The Berg court stated, however, that where the custom in question does not itself constitute the constitutional violation – but rather is alleged to have led to the violation – the plaintiff must additionally meet the deliberate-indifference test set forth in City of Canton, Ohio v. Harris, 489 U.S. 378 (1989):81 “If... the policy or custom does not facially violate federal law, causation can be established only by ‘demonstrat[ing] that the municipal action was taken with “deliberate indifference” as to its known or obvious consequences.’” Berg, 219 F.3d at 276 (quoting Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 407 (1997)); see also Natale v. Camden County Correctional Facility 318 F.3d 575, 585 (3d Cir. 2003) (finding a jury question on municipal liability because “the failure to establish a policy to address the immediate medication needs of inmates with serious medical conditions creates a risk that is sufficiently obvious as to constitute deliberate indifference to those inmates' medical needs”). Where a finding of deliberate indifference is required, the first bracketed sentence in Instruction 4.6.6 should be altered accordingly. Cases applying a deliberate-indifference standard for municipal liability often involve allegations of failure to adequately train, supervise or screen, see, e.g., Montgomery v. De Simone, 159 F.3d 120, 126-26 (3d Cir. 1998) (“[A] municipality's failure to train police officers only gives rise to a constitutional violation when that failure amounts to deliberate indifference to the rights of persons with whom the police come into contact.”); Estate of Roman v. Newark, 914 F.3d 789, 799 (3d Cir. 2019) (holding that failure to train, supervise, and discipline claims were also adequately pled). In cases where plaintiff seeks to establish municipal liability for failure to adequately train or supervise a municipal employee, the more specific standards set forth in Instruction 4.6.7 should be employed; Instruction 4.6.8 should be used when the plaintiff asserts municipal liability for failure to screen.


(Last Updated July 2019)

Footnotes

71 In cases where the plaintiff must show deliberate indifference on the part of a policymaking official, this language should be modified accordingly. See Comment.
72 This language can be used if the plaintiff introduces evidence concerning a specific policymaking official. For a discussion of whether the plaintiff must introduce such evidence, see Comment.
73 “A § 1983 plaintiff... may be able to recover from a municipality without adducing evidence of an affirmative decision by policymakers if able to prove that the challenged action was pursuant to a state ‘custom or usage.’” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 n.10 (1986) (plurality opinion); see also Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3d Cir. 1986) (“Even if the practices with respect to jail conditions also were followed without formal city action, it appears that they were the norm. The description of the cells revealed a long standing condition that had become an acceptable standard and practice for the City.”).
74 In B.S. v. Somerset County, 704 F.3d 250 (3d Cir. 2013), the Court of Appeals held that the County was liable for violating the plaintiff’s procedural Due Process rights because the County had a “custom of removing children from a parent's home [based on alleged abuse] without conducting a prompt post-removal hearing if another parent can take custody,” id. at 275. The court of appeals held that there was no need to resolve “who the relevant policymaker was” because of the County’s “effective admission of a custom.” Id. at 275 n.36.
75 In Jett, the Court remanded for a determination of whether the school district superintendent was a policymaking official for purposes of the plaintiff’s claims under 42 U.S.C. § 1981. The Court instructed that on remand Section 1983's municipal-liability standards would govern. See id. at 735-36. “Once those officials who have the power to make official policy on a particular issue have been identified, it is for the jury to determine whether their decisions have caused the deprivation of rights at issue by policies which affirmatively command that it occur... , or by acquiescence in a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local governmental entity.” Id. at 737 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 485-87 (1986) (White, J., concurring in part and in the judgment)). Though this language suggests an expectation that a custom analysis would depend on a policymaker’s knowledge and acquiescence, such a requirement was not the focus of the Court’s opinion in Jett. Moreover, the Jett Court’s quotation from Justice White’s partial concurrence in Pembaur is somewhat puzzling. In Pembaur the Court held “that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Pembaur, 475 U.S. at 480. Because Pembaur focused on instances where a policymaker directed the challenged activity, municipal liability under the “custom” theory was not at issue in the case. See id. at 481 n.10 (plurality opinion). Justice White’s Pembaur concurrence does not suggest otherwise; the language quoted by the Jett Court constitutes Justice White’s explanation of his reasons for agreeing that the policymakers’ directives in Pembaur could ground municipal liability. Justice White explained:

The city of Cincinnati frankly conceded that forcible entry of third party property to effect otherwise valid arrests was standard operating procedure. There is no reason to believe that respondent county would abjure using lawful means to execute the capiases issued in this case or had limited the authority of its officers to use force in executing capiases. Further, the county officials who had the authority to approve or disapprove such entries opted for the forceful entry, a choice that was later held to be inconsistent with the Fourth Amendment. Vesting discretion in its officers to use force and its use in this case sufficiently manifested county policy to warrant reversal of the judgment below.

Pembaur, 475 U.S. at 485 (White, J., concurring in part and in the judgment). Thus, the Jett Court’s quote from Justice White’s Pembaur opinion further supports the inference that the Jett Court did not give sustained attention to the contours of the custom branch of the municipal-liability doctrine.


76 The Baker plaintiffs failed to show that the municipal police officer on the scene was a policymaker and failed to introduce evidence concerning municipal practices, and thus the court held that their claims against the city concerning the use of guns and handcuffs during a search were properly dismissed. See id. at 1194; see also id. at 1195 (upholding dismissal of illegal search claims against city due to lack of evidence “that Monroe Township expressly or tacitly authorized either of the searches”).
77 In Andrews, the court suggested that Police Commissioner Tucker’s lack of actual knowledge was significant to the court’s holding that the municipal-liability claim failed: “[A]lthough Tucker reviewed the decision made by AID with respect to plaintiffs' complaints, he personally did not observe or acquiesce in any sexual harassment, and he was not convinced that the AID decisions were motivated by sexual animus....” 895 F.2d at 1481. However, the court also noted that “[t]his is not a case where there was a longstanding practice which was completely ignored by the policymaker who was absolved by the jury,” id. at 1482 – a caveat that suggests the possibility that in such a case constructive knowledge might play a role in the acquiescence analysis.
78 See also Watson v. Abington Tp., 478 F.3d 144, 156 (3d Cir. 2007) (citing Bielevicz with approval on this point). The Watson court’s explanation of its rejection of the plaintiff’s municipal-liability claim seems compatible with a constructive-knowledge standard. See Watson, 478 F.3d at 157 (rejecting a custom-based municipal liability claim because, inter alia, the plaintiffs failed to show “that what happened at the Scoreboard was so widespread that a decisionmaker must have known about it”).
79 See also Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996) (quoting Bielevicz on this point). Similarly, in Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003), the court did not pause to identify a specific policymaking official, but rather found a jury question based on “evidence that [Prison Health Services] turned a blind eye to an obviously inadequate practice that was likely to result in the violation of constitutional rights,” id. at 584.
80 This language might be read to suggest that knowledge and acquiescence are merely one option for establishing a municipal custom. Likewise, in Fletcher v. O'Donnell, 867 F.2d 791 (3d Cir. 1989), the court, writing a few months before Jett was decided, stated that “[c]ustom may be established by proof of knowledge and acquiescence,” Fletcher, 867 F.2d at 793-94 (citing Pembaur, 475 U.S. at 481 82 n.10 (plurality opinion)) – an observation that arguably suggests there may also exist other means of showing custom. As discussed in the text, however, the Beck court seemed to focus its analysis on the question of actual or constructive knowledge.
81 Similarly, when he advocated a “scienter” requirement in Simmons, Judge Becker noted that he did not intend “to exclude from the scope of scienter's meaning a municipal policymaker's deliberately indifferent acquiescence in a custom or policy of inadequately training employees, even though ‘the need for more or different training is [very] obvious, and the inadequacy [quite] likely to result in the violation of constitutional rights.’” Simmons, 947 F.2d at 1061 n.14 (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). Judge Becker’s opinion did not provide details on the application of this standard to the Simmons case, because he found that the City had waived “the argument that plaintiff failed to establish the essential ‘scienter’ element of her case.” Id. at 1066. Chief Judge Sloviter wrote separately to explain, inter alia, her belief “that Judge Becker's emphasis on production by plaintiff of ‘scienter like evidence’ when charging a municipality with deliberate indifference to deprivation of rights may impose on plaintiffs a heavier burden than mandated by the Supreme Court or prior decisions of this court.” Id. at 1089 (Sloviter, C.J., concurring in part and in the judgment). Chief Judge Sloviter stressed “that liability may be based on the City's (i.e., policymaker's) reckless refusal or failure to take account of facts or circumstances which responsible individuals should have known,” id. at 1090, and she pointed out that a standard requiring “actual knowledge of the conditions by a municipal policymaker... would put a premium on blinders,” id. at 1091.

4 PJI 6.7 | SECTION 1983 – MUNICIPALITIES – LIABILITY THROUGH INADEQUATE TRAINING OR SUPERVISION

82[Plaintiff] claims that [municipality] adopted a policy of [inadequate training] [inadequate supervision], and that this policy caused the violation of [plaintiff’s] [specify right].

In order to hold [municipality] liable for the violation of [plaintiff’s] [specify right], you must find that [plaintiff] has proved each of the following three things by a preponderance of the evidence:

First: [[Municipality’s] training program was inadequate to train its employees to carry out their duties] [[municipality] failed adequately to supervise its employees].

Second: [Municipality’s] failure to [adequately train] [adequately supervise] amounted to deliberate indifference to the fact that inaction would obviously result in the violation of [specify right].

Third: [Municipality’s] failure to [adequately train] [adequately supervise] proximately caused the violation of [specify right].


In order to find that [municipality’s] failure to [adequately train] [adequately supervise] amounted to deliberate indifference, you must find that [plaintiff] has proved each of the following three things by a preponderance of the evidence:

First: [Governing body] or [policymaking official] knew that employees would confront a particular situation.

Second: The situation involved [a matter that employees had a history of mishandling].83

Third: The wrong choice by an employee in that situation will frequently cause a deprivation of [specify right].


In order to find that [municipality’s] failure to [adequately train] [adequately supervise] proximately caused the violation of [plaintiff’s] federal right, you must find that [plaintiff] has proved by a preponderance of the evidence that [municipality’s] deliberate indifference led directly to the deprivation of [plaintiff’s] [specify right].

COMMENT As noted above, municipal liability can arise from an official policy that authorizes the constitutional tort; such liability can also arise if the constitutional tort is caused by an official policy of inadequate84 training, supervision or investigation, or by a failure to adopt a needed policy.85 In the context of claims asserting such “liability through inaction,” Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000), the plaintiff will have to meet the additional hurdle of showing “deliberate indifference” on the part of the municipality.86 “[L]iability for failure to train subordinate officers will lie only where a constitutional violation results from ‘deliberate indifference to the constitutional rights of [the municipality's] inhabitants. ’” Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989)); see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality opinion) (holding that evidence of a single incident of shooting by police could not establish a municipal policy of inadequate training); Brown v. Muhlenberg Township, 269 F.3d 205, 216 (3d Cir.2001) (plaintiff “must present evidence that the need for more or different training was so obvious and so likely to lead to the violation of constitutional rights that the policymaker's failure to respond amounts to deliberate indifference”); Woloszyn v. County of Lawrence, 396 F.3d 314, 324-25 (3d Cir. 2005) (discussing failure-to-train standard in case involving suicide by pre-trial detainee). The deliberate indifference test also applies to claims of “negligent supervision and failure to investigate.” Groman, 47 F.3d at 637.

“A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (quoting Board of County Com'rs of Bryan County v. Brown, 520 U.S. 397, 409 (1997)); see also Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004) (“A plaintiff must identify a municipal policy or custom that amounts to deliberate indifference to the rights of people with whom the police come into contact.... This typically requires proof of a pattern of underlying constitutional violations.... Although it is possible, proving deliberate indifference in the absence of such a pattern is a difficult task.”); Mann v. Palmerton Area School District, 872 F.3d 165, 175 (3d Cir. 2017) (holding that a school district could not be held liable for failure to train football coaches about concussions because there was “no evidence of a pattern of recurring head injuries” in the football program, and finding it significant that state law did not mandate concussion training for coaches until after the events at issue). Thus, for example, evidence of prior complaints and of inadequate procedures for investigating such complaints can suffice to create a jury question concerning municipal liability. See Beck, 89 F.3d at 974-76 (reviewing evidence concerning procedures and holding that “Beck presented sufficient evidence from which a reasonable jury could have inferred that the City of Pittsburgh knew about and acquiesced in a custom tolerating the tacit use of excessive force by its police officers”). Cf. City of Canton, 489 U.S. at 390 n.10 (“It could also be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are ‘deliberately indifferent’ to the need.”) In a “narrow range” of cases, Connick, 131 S. Ct. at 1366, deliberate indifference can be shown even absent a pattern of prior violations by demonstrating that a constitutional violation was sufficiently foreseeable: “[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” City of Canton, 489 U.S. at 390. In a post-Connick case, Thomas v. Cumberland County, 749 F.3d 217 (3d Cir. 2014), the court of appeals found the evidence sufficient for the claim to go to a jury under this standard. It held that “a reasonable jury could conclude based on the frequency of fights and the volatile nature of the prison” that the county was deliberately indifferent based on its failure to provide training in conflict de-escalation. See also Estate of Roman v. City of Newark, 914 F.3d 789, 800 (3d Cir. 2019) (holding that one could reasonably infer deliberate indifference because the city knew to a moral certainty that its officers would need to conduct searches, but its training did not cover the basics of the Fourth Amendment, it did not discipline officers for misconduct, even after prior violations, and, in at least one instance, it failed to provide training since 1995).

The Third Circuit has previously applied a three-part test to determine whether “a municipality's failure to train or supervise to amount[s] to deliberate indifference”: Under this test, “it must be shown that (1) municipal policymakers know that employees will confront a particular situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights.” Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999).87 Readers should note that a substantially similar instruction was given in Connick, a case in which the closely-divided Court held that the municipal defendant was entitled to judgment as a matter of law due to the plaintiff’s failure to prove a pattern of similar violations. Because Connick states that such a pattern is ordinarily needed in order to establish deliberate indifference in connection with a failure-to-train claim, Instruction 4.6.7 no longer tracks the Carter instruction precisely: The second element no longer offers as an alternative a finding that the situation “involved a difficult choice.” For the narrow range of cases in which no pattern of similar violations is necessary, Instruction 4.6.7 can be modified.

(Last Updated July 2019)

Footnotes

82 In light of Forrest v. Parry, 930 F.3d 93 (3d Cir. 2019), consider the following as an alternative to this sentence: “[Plaintiff] claims that [municipality] failed to [adequately train] [adequately supervise] its employees, and that this failure caused the violation of [plaintiff’s] [specify right].” See discussion of Forrest in Comment 4.6.3.
83 See the Comment for a discussion of the reasons why this aspect of Instruction 4.6.7 diverges from the second element of the three-part test for deliberate indifference approved in Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999).
84 As to the adequacy of a municipality’s investigation, the Third Circuit has made clear that a policy must be adequate in practice, not merely on paper: “We reject the district court's suggestion that mere Department procedures to receive and investigate complaints shield the City from liability. It is not enough that an investigative process be in place;... ‘[t]he investigative process must be real. It must have some teeth.’” Beck v. City of Pittsburgh, 89 F.3d 966, 974 (3d Cir. 1996) (quoting plaintiff’s reply brief, Beck v. City of Pittsburgh, No. 95 3328, 1995 WL 17147608, at *5).
85 The Third Circuit has held that the failure to adopt a needed policy can result in municipal liability in an appropriate case, and has analyzed that question of municipal liability using the deliberate indifference test. See Natale v. Camden County Correctional Facility, 318 F.3d 575, 585 (3d Cir. 2003) (“A reasonable jury could conclude that the failure to establish a policy to address the immediate medication needs of inmates with serious medical conditions creates a risk that is sufficiently obvious as to constitute deliberate indifference to those inmates' medical needs.”).

The Third Circuit has declined to “recognize[] municipal liability for a constitutional violation because of failure to equip police officers with non lethal weapons.” Carswell v. Borough of Homestead, 381 F.3d 235, 245 (3d Cir. 2004) (“We decline to [recognize such liability] on the record before us.”).

86 “If... the policy or custom does not facially violate federal law, causation can be established only by ‘demonstrat[ing] that the municipal action was taken with “deliberate indifference” as to its known or obvious consequences.’” Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (quoting Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 407 (1997)).
87 In Doe v. Luzerne County, 660 F.3d 169 (3d Cir. 2011) — a post Connick decision — the Court of Appeals quoted Carter’s three part test and held that the evidence, taken in the light most favorable to the plaintiff, would not support a finding of municipal liability under that test. See Doe, 660 F.3d at 179-80. See also Forrest v. Parry, 930 F.3d 93, 118 (3d Cir. 2019); Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (both reiterating this test).

4 PJI 6.8 | SECTION 1983 – MUNICIPALITIES – LIABILITY THROUGH INADEQUATE SCREENING

[Plaintiff] claims that [municipality] adopted a policy of inadequate screening, and that this policy caused the violation of [plaintiff’s] [specify right]. Specifically, [plaintiff] claims that [municipality] should be held liable because [municipality] did not adequately check [employee’s] background when hiring [him/her].

[Plaintiff] cannot establish that [municipality] is liable merely by showing that [municipality] hired [employee] and that [employee] violated [plaintiff’s] [specify right].

In order to hold [municipality] liable for [employee’s] violation of [plaintiff’s] [specify right], you must also find that [plaintiff] has proved each of the following three things by a preponderance of the evidence:

First: [Municipality] failed to check adequately [employee’s] background when hiring [him/her].

Second: [Municipality’s] failure to check adequately [employee’s] background amounted to deliberate indifference to the risk that a violation of [specify right] would follow the hiring decision.

Third: [Municipality’s] failure to check adequately [employee’s] background proximately caused the violation of that federal right.


In order to find that [municipality’s] failure to check adequately [employee’s] background amounted to deliberate indifference, you must find that [plaintiff] has proved by a preponderance of the evidence that:

• adequate scrutiny of [employee’s] background would have led a reasonable policymaker to conclude that it was obvious that hiring [employee] would lead to the particular type of [constitutional] [statutory] violation that [plaintiff] alleges, namely [specify constitutional (or statutory) violation].

In order to find that [municipality’s] failure to check adequately [employee’s] background proximately caused the violation of [plaintiff’s] federal right, you must find that [plaintiff] has proved by a preponderance of the evidence that [municipality’s] deliberate indifference led directly to the deprivation of [plaintiff’s] [specify right].

COMMENT Although inadequate screening during the hiring process can form the basis for municipal liability, the Supreme Court has indicated that the deliberate indifference test must be applied stringently in this context.88 Where the plaintiff claims “that a single facially lawful hiring decision launch[ed] a series of events that ultimately cause[d] a violation of federal rights.... , rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 405 (1997). In Brown, the Court held that the fact that a county sheriff hired his nephew’s son as a reserve deputy sheriff without an adequate background check did not establish municipal liability for the reserve deputy sheriff’s use of excessive force. The Court indicated that one relevant factor was that the claim focused on a single hiring decision:
Where a claim of municipal liability rests on a single decision, not itself representing a violation of federal law and not directing such a violation, the danger that a municipality will be held liable without fault is high. Because the decision necessarily governs a single case, there can be no notice to the municipal decisionmaker, based on previous violations of federally protected rights, that his approach is inadequate. Nor will it be readily apparent that the municipality's action caused the injury in question, because the plaintiff can point to no other incident tending to make it more likely that the plaintiff's own injury flows from the municipality's action, rather than from some other intervening cause. Id. at 408-09. The Court also drew a distinction between inadequate training cases and inadequate screening cases:
The proffered analogy between failure to train cases and inadequate screening cases is not persuasive. In leaving open in Canton the possibility that a plaintiff might succeed in carrying a failure to train claim without showing a pattern of constitutional violations, we simply hypothesized that, in a narrow range of circumstances, a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations. The likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that situation will violate citizens' rights could justify a finding that policymakers’ decision not to train the officer reflected “deliberate indifference” to the obvious consequence of the policymakers' choice – namely, a violation of a specific constitutional or statutory right. The high degree of predictability may also support an inference of causation – that the municipality's indifference led directly to the very consequence that was so predictable.

Where a plaintiff presents a § 1983 claim premised upon the inadequacy of an official's review of a prospective applicant's record, however, there is a particular danger that a municipality will be held liable for an injury not directly caused by a deliberate action attributable to the municipality itself. Every injury suffered at the hands of a municipal employee can be traced to a hiring decision in a "but for" sense: But for the municipality's decision to hire the employee, the plaintiff would not have suffered the injury. To prevent municipal liability for a hiring decision from collapsing into respondeat superior liability, a court must carefully test the link between the policymaker's inadequate decision and the particular injury alleged.
Id. at 409-10. Thus, in the inadequate screening context,
[a] plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision. Only where adequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's federally protected right can the official's failure to adequately scrutinize the applicant's background constitute “deliberate indifference.” Id. at 411; see id. at 412 (“[A] finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional injury. Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff.”); id. (question is “whether Burns’ background made his use of excessive force in making an arrest a plainly obvious consequence of the hiring decision”).

Instruction 4.6.8 is designed for use in cases where the plaintiff alleges that the municipality failed adequately to check the prospective employee’s background. In some cases, the asserted basis for liability may be, instead, that the municipality checked the prospective employee’s background, learned of information indicating the risk that the person would commit the relevant constitutional violation, and nonetheless hired the person. In such cases, Instruction 4.6.8 can be modified as needed to reflect the fact that ignoring known information also can form the basis for an inadequate screening claim.

(Last Updated July 2019)

Footnotes

88 The Court in Brown argued that it was not imposing a heightened test for inadequate screening cases. See Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 413 n.1 (1997) (“We do not suggest that a plaintiff in an inadequate screening case must show a higher degree of culpability than the ‘deliberate indifference’ required in Canton... ; we need not do so, because, as discussed below, respondent has not made a showing of deliberate indifference here.”). However, as discussed in the text of this Comment, the Court’s holding and reasoning in Brown reflect a stringent application of the deliberate indifference test.

4 PJI 7.1 | SECTION 1983 - CONDUCT NOT COVERED BY ABSOLUTE IMMUNITY

The defendant in this case is a [prosecutor] [judge] [witness] [legislative body]. [Prosecutors, etc.] are entitled to what is called absolute immunity for all conduct reasonably related to their functions as [prosecutors, etc.]. Thus, you cannot hold [defendant] liable based upon [defendant’s] actions in [describe behavior protected by absolute immunity]. Evidence concerning those actions was admitted solely for [a] particular limited purpose[s]. This evidence can be considered by you as evidence that [describe limited purpose]. But you cannot decide that [defendant] violated [plaintiff’s] [specify right] based on evidence that [defendant] [describe behavior protected by absolute immunity].

However, [plaintiff] also alleges that [defendant] [describe behavior not covered by absolute immunity]. Absolute immunity does not apply to such conduct, and thus if you find that [defendant] engaged in such conduct, you should consider it in determining [defendant’s] liability.

COMMENT In most cases, questions of absolute immunity should be resolved by the judge prior to trial. Instruction 4.7.1 will only rarely be necessary; it is designed to address cases in which some, but not all, of the defendant’s alleged conduct would be covered by absolute immunity, and in which evidence of the conduct covered by absolute immunity has been admitted for some purpose other than demonstrating liability. In such a case, the jury should determine liability based on the conduct not covered by absolute immunity. Instruction 4.7.1 provides a limiting instruction specifically tailored to this issue; see also General Instruction 2.10 (Evidence Admitted for Limited Purpose).

Prosecutors89 have absolute immunity from damages claims concerning prosecutorial functions. “[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); see also Imbler v. Pachtman, 424 U.S. 409 (1976); Burns v. Reed, 500 U.S. 478, 492 (1991) (holding that a prosecutor’s “appearance in court in support of an application for a search warrant and the presentation of evidence at that hearing” were “protected by absolute immunity”). Moreover, “supervision or training or information system management” activities can qualify for absolute immunity – even though such acts are administrative in nature – if the administrative action in question “is directly connected with the conduct of a trial.” Van De Kamp v. Goldstein, 129 S. Ct. 855, 861-62 (2009); see id. at 858-59 (holding that absolute immunity “extends to claims that the prosecution failed to disclose impeachment material... due to: (1) a failure properly to train prosecutors, (2) a failure properly to supervise prosecutors, or (3) a failure to establish an information system containing potential impeachment material about informants”). Absolute immunity does not apply, however, “[w]hen a prosecutor performs the investigative functions normally performed by a detective or police officer,” Buckley, 509 U.S. at 273, or when a prosecutor “provid[es] legal advice to the police,” Burns, 500 U.S. at 492, 496.90

Judges possess absolute immunity from damages liability for “acts committed within their judicial jurisdiction.” Pierson v. Ray, 386 U.S. 547, 554 (1967).91 “[T]he factors determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978).92 Judges do not possess absolute immunity with respect to claims arising from “the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.” Forrester v. White, 484 U.S. 219, 227 (1988).

State or local legislators enjoy absolute immunity from suits seeking damages or injunctive remedies with respect to legislative acts. See Tenney v. Brandhove, 341 U.S. 367, 379 (1951) (recognizing absolute immunity in case where state legislators “were acting in a field where legislators traditionally have power to act”); Bogan v. Scott Harris, 523 U.S. 44, 49 (1998) (unanimous decision) (holding that “local legislators are... absolutely immune from suit under § 1983 for their legislative activities”).

The Court of Appeals has set forth a two-part test for legislative immunity in suits against local officials: “To be legislative..., the act in question must be both substantively and procedurally legislative in nature.... An act is substantively legislative if it involves ‘policy making of a general purpose’ or ‘line drawing.’... It is procedurally legislative if it is undertaken ‘by means of established legislative procedures.’” In re Montgomery County, 215 F.3d 367, 376 (3d Cir. 2000) (quoting Carver v. Foerster, 102 F.3d 96, 100 (3d Cir. 1996)). Based on the Supreme Court’s discussion in Bogan,93 the Court of Appeals has questioned the two-part test’s applicability to local officials and has indicated that it does not govern claims against state officials.94 See, e.g., Larsen v. Senate of Com. of Pa., 152 F.3d 240, 252 (3d Cir. 1998) (“[B]ecause concerns for the separation of powers are often at a minimum at the municipal level, we decline to extend our analysis developed for municipalities to other levels of government.”). More recently, however, the Court of Appeals has held that “[r]egardless of the level of government,... the two part substance/procedure inquiry is helpful in analyzing whether a non legislator performing allegedly administrative tasks is entitled to [legislative] immunity.” Baraka v. McGreevey, 481 F.3d 187, 199 (3d Cir. 2007) (addressing claims against New Jersey Governor and chair of the New Jersey State Council for the Arts).95

Law enforcement officers who serve as witnesses generally have absolute immunity from claims concerning their testimony. See Briscoe v. LaHue, 460 U.S. 325, 345 (1983) (trial testimony); Rehberg v. Paulk, 132 S. Ct. 1497, 1506 (2012) (grand jury testimony).96

In addition to the immunities recognized by the Supreme Court, there may exist other categories of absolute immunity. See, e.g., Ernst v. Child and Youth Services of Chester County, 108 F.3d 486, 488-89 (3d Cir. 1997) (holding that “child welfare workers and attorneys who prosecute dependency proceedings on behalf of the state are entitled to absolute immunity from suit for all of their actions in preparing for and prosecuting such dependency proceedings”); B.S. v. Somerset County, 704 F.3d 250, 265 (3d Cir. 2013) (holding “that Ernst's absolute immunity for child welfare employees is appropriate when the employee in question ‘formulat[es] and present[s]... recommendations to the court’ with respect to a child's custody determination, even if those recommendations are made outside the context of a dependency proceeding” (quoting Ernst, 108 F.3d at 495)).

(Last Updated July 2019)

Footnotes

89 See Light v. Haws, 472 F.3d 74, 78 (3d Cir. 2007) (holding that Assistant Counsel for the Pennsylvania Department of Environmental Protection, when “filing actions to enforce compliance with court orders.... [,] functions as a prosecutor”).
90 See also Kalina v. Fletcher, 522 U.S. 118, 120, 131 (1997) (prosecutor lacked absolute immunity from claim asserting that she “ma[de] false statements of fact in an affidavit supporting an application for an arrest warrant,” because in so doing she “performed the function of a complaining witness” rather than that of an advocate); Fogle v. Sokol, 957 F.3d 148 (3d Cir. 2020) (holding that arranging a hypnosis session to procure a statement and encouraging troopers to solicit false statements from jailhouse informants were not protected by absolute immunity, while failing to report inconsistencies to a magistrate judge and various misconduct at hearings and at trial were protected); Reitz v. County of Bucks, 125 F.3d 139, 146 (3d Cir. 1997) (holding that “absolute immunity covers a prosecutor's actions in (1) creating and filing of an in rem complaint; (2) preparing of and applying for the seizure warrant; and (3) participating in ex parte hearing for the issuance of the seizure warrant,” but does not cover prosecutor’s “conduct with respect to the management and retention of the property after the seizure, hearing, and trial”).

In Odd v. Malone, 538 F.3d 202 (3d Cir. 2008), “prosecuting attorneys obtained bench warrants to detain material witnesses whose testimony was vital to murder prosecutions. Although the attorneys diligently obtained the warrants, they neglected to keep the courts informed of the progress of the criminal proceedings and the custodial status of the witnesses.” Id. at 205. The Court of Appeals held that a prosecutor sued “for failing to notify the relevant authorities that the proceedings in which the detained individual was to testify had been continued for nearly four months,” id., did not qualify for absolute prosecutorial immunity; the court based this holding on the facts of the case, including the fact that the judge who issued the material witness warrant had directed the prosecutor to notify him of any delays in the murder prosecution but the prosecutor had failed to do so. Id. at 212 13. The Odd court also held (a fortiori) that a different prosecutor sued “for failing to notify the relevant authorities that the material witness remained incarcerated after the case in which he was to testify had been dismissed,” id. at 205, lacked absolute prosecutorial immunity. See id. at 215. In Schneyder v. Smith, 653 F.3d 313 (3d Cir. 2011), the Court of Appeals on a subsequent appeal adhered to its ruling that the prosecutor who allegedly failed to inform the court of the trial continuance lacked absolute immunity, see id. at 333-34. The Schneyder court reasoned that its ruling in Odd was consistent with the Supreme Court’s subsequent decision in Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009). Under Van de Kamp, “some administrative functions relate directly to the conduct of a criminal trial and are thus protected, while others... are connected to trial only distantly (if at all) and are therefore not subject to immunity.” Schneyder, 653 F.3d at 334. The Schneyder court concluded that the prosecutor’s failure to inform the court of the trial continuance fell in the latter category: The failure was not “directly connected to the conduct of a trial,” and “[a]s the sole government official in possession of the relevant information, [the prosecutor] had a duty of disclosure that was neither discretionary nor advocative, but was instead a purely administrative act not entitled to the shield of immunity, even after Van de Kamp.” Schneyder, 653 F.3d at 334.

91 Judges also now possess a statutory immunity from claims for injunctive relief. See 42 U.S.C. § 1983 (providing that “in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable”).
92 Under the doctrine of “quasi-judicial” immunity, “government actors whose acts are relevantly similar to judging are immune from suit.” Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006); see id. at 322 (holding that “the members of the Board of Supervisors of Salem Township, Pennsylvania are immune from suits brought against them in their individual capacities relating to their decision to deny an application for a permit for a conditional use”); id. at 327 (stressing the need to “closely and carefully examine the functions performed by the board in each case”); Capogrosso v. Supreme Court of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009) (holding that individual-capacity claims against Director and Disciplinary Counsel for New Jersey Advisory Committee on Judicial Conduct were barred by quasi-judicial immunity); Keystone Redev. Partners, LLC v. Decker, 631 F.3d 89, 90 (3d Cir. 2011) (holding that former members of Pennsylvania Gaming Control Board had quasi-judicial immunity from individual-capacity claims “based on their decisions to grant gaming licenses to certain applicants other than” the plaintiff).
93 The Bogan Court declined to determine whether a procedurally legislative act by a local official must also be substantively legislative in order to qualify for legislative immunity: “Respondent... asks us to look beyond petitioners' formal actions to consider whether the ordinance was legislative in substance. We need not determine whether the formally legislative character of petitioners' actions is alone sufficient to entitle petitioners to legislative immunity, because here the ordinance, in substance, bore all the hallmarks of traditional legislation.” Bogan, 523 U.S. at 55.
94 The Court of Appeals stated (in a case concerning claims against state legislators) that Bogan casts doubt on the propriety of using any separate test to examine municipal level legislative immunity, see Bogan, 523 U.S. at 49... (holding that local legislators are ‘likewise’ absolutely immune from suit under § 1983), particularly a two part, substance/procedure test, id. at 55... (refusing to require that an act must be ‘legislative in substance’ as well as of ‘formally legislative character’ in order to be a legislative act).

Youngblood v. DeWeese, 352 F.3d 836, 841 n.4 (2004); see also Fowler Nash v. Democratic Caucus of Pa. House of Representatives, 469 F.3d 328, 339 (3d Cir. 2006) (stating, in a suit against state officials, that the Bogan Court “refused to insist that formally legislative acts, such as passing legislation, also be ‘legislative in substance’”).

95 Prior to Baraka, the Court of Appeals had observed in Fowler Nash v. Democratic Caucus of Pa. House of Representatives, 469 F.3d 328, 338 (3d Cir. 2006), that cases concerning local officials can be “instructive” in the court’s analysis of whether a state official’s actions were legislative in nature. See also id. at 332 (describing the “functional” test for legislative immunity); id. at 340 (holding that firing of state representative’s legislative assistant was administrative rather than legislative act). And another post-Larsen decision by the Court of Appeals did apply the two-part test to determine whether Pennsylvania Supreme Court justices had legislative immunity from claims arising from the termination of a plaintiff’s employment as the Executive Administrator of the First Judicial District of Pennsylvania. See Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 776-77 (3d Cir. 2000). Gallas involved a question of legislative immunity because the plaintiff challenged a Pennsylvania Supreme Court order that eliminated the position of Executive Administrator of the First Judicial District of Pennsylvania. See id. at 766.
96 Compare Malley v. Briggs, 475 U.S. 335, 344 (1986) (no absolute immunity for a police officer in connection with claim that his “request for a warrant allegedly caused an unconstitutional arrest”).

4 PJI 7.2 | SECTION 1983 - QUALIFIED IMMUNITY

Note: For the reasons explained in the Comment, the jury should not be instructed on qualified immunity. Accordingly, no instruction on this issue is provided. COMMENT “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). They “are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation marks and citation omitted).97

Thus to prevail, a plaintiff must show both that the officer violated a federal right, and that such federal right was clearly established at the time the officer acted. A defendant, by contrast, can prevail by winning on either ground. For example, “[e]ven without inquiring as to whether the right [plaintiffs] identify here is clearly established, the failure to establish a factual basis for the purported constitutional violation is an independently sufficient ground on which to affirm the grant of summary judgment in favor of the individual officers.” Karns v. Shanahan, 879 F.3d 504, 521 (3d Cir. 2018). And a “court may not deny a summary judgment motion premised on qualified immunity without deciding that the right in question was clearly established at the time of the alleged wrongdoing.” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 n.4 (3d Cir. 2015).

For a time, the Supreme Court required that lower courts decide whether an officer violated the constitution, even if they were ruling in favor of the defendant because the claimed constitutional right was not clearly established at the time the officer acted. Saucier v. Katz, 533 U.S. 194, 201 (2001). The point of this requirement was to enable continued development of the law. Id. (“This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.”).

But the Court later lifted this requirement, allowing lower courts to exercise their discretion in this regard. Pearson v. Callahan, 555 U.S. 223, 243 (2009); Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (stating that Pearsonheld that courts may grant qualified immunity on the ground that a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all”). More recently, the Court has “stress[ed] that lower courts ‘should think hard, and then think hard again,’ before addressing both qualified immunity and the merits of an underlying constitutional claim.” Wesby, 138 S. Ct. at 589 (2018) (quoting Camreta v. Greene, 563 U.S. 692, 707 (2011)). As the Court explained in Camreta, “In general, courts should think hard, and then think hard again, before turning small cases into large ones. But it remains true that following the two-step sequence — defining constitutional rights and only then conferring immunity — is sometimes beneficial to clarify the legal standards governing public officials.” 563 U.S. at 707.98

To be clearly established, not only must a legal principle “have a sufficiently clear foundation in then-existing precedent,” but its “contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Wesby, 138 S. Ct. at 589–90 (internal quotation marks and citation omitted). “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful... ; but it is to say that in the light of pre existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[T]he salient question... is whether the state of the law [at the time of the conduct] gave respondents fair warning that their [conduct] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). See also Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam) (emphasizing the need for attention to context in judging whether application of a general principle was clear under the circumstances). The court of appeals has explained that “[t]o determine whether a new scenario is sufficiently analogous to previously established law to warn an official that his/her conduct is unconstitutional, we ‘inquir[e] into the general legal principles governing analogous factual situations... and... determin[e] whether the official should have related this established law to the instant situation.’ ’”” Burns v. PA Dep’t of Corrections, 642 F.3d 163, 177 (3d Cir. 2011) (quoting Hicks v. Feeney, 770 F.2d 375, 380 (3d Cir. 1985)).

Unlawfulness can be apparent “even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002); Groh v. Ramirez, 540 U.S. 551, 564 (2004) (“No reasonable officer could claim to be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search of the home is presumptively unconstitutional.”); Thomas v. Tice, 948 F.3d 133, 141 (3d Cir. 2020) (denying qualified immunity because defendants “failed to present evidence of any continuing penological interest” in keeping a prisoner in a dry cell (a cell that lacks any water) to discover suspected swallowed contraband after four days and twelve bowel movements had produced no evidence of contraband); Halsey v. Pfeiffer, 750 F.3d 273, 296 (3d Cir. 2014) (holding that even though it had not previously decided on the viability of a stand-alone claim for fabrication of evidence, reasonable officers should have known that “they certainly could not fabricate inculpatory evidence”); Schneyder v. Smith, 653 F.3d 313, 330 (3d Cir. 2011) (holding that a prosecutor’s alleged failure to inform a judge of the continuance of a trial for which the judge had ordered a material witness detained presented “one of those exceedingly rare cases in which the existence of the plaintiff's constitutional right is so manifest that it is clearly established by broad rules and general principles”); Abbott v. Latshaw, 164 F.3d 141, 148 (3d Cir. 1998) (denying qualified immunity and noting that “it is the domain of the courts,” not law enforcement officers, “to decide who is entitled to possession of property,” that “citizens are to have a meaningful opportunity to be heard as to their rights before they are finally deprived of possession of property,” and that the officer’s “curbside courtroom, in which he decided who was entitled to possession, is precisely the situation and deprivation of rights to be avoided”); cf. Estate of Lagano v. Bergen Cnty. Prosecutor's Office, 769 F.3d 850, 859 (3d Cir. 2014) (vacating grant of qualified immunity because plaintiff can overcome qualified immunity “without proving that we have previously issued a binding decision recognizing a state-created danger in the context of the disclosure of a confidential informant's status”); L.R. v. School District of Philadelphia, 836 F.3d 235, 249 (3d Cir. 2016) (holding that a teacher who allowed a kindergarten student to leave the classroom with a stranger violated the clearly established right “to not be removed from a safe environment and placed into one in which it is clear that harm is likely to occur, particularly when the individual may, due to youth or other factors, be especially vulnerable to the risk of harm”); Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017) (holding that, under prior precedent, “no reasonable officer who was aware of the lethal risk involved in demonstrating the use of deadly force on another person and who proceeded to conduct the demonstration in a manner directly contrary to known safety protocols could think his conduct was lawful”). See also District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (noting that there can be “the rare ‘obvious case,’ where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances, [b]ut ‘a body of relevant case law’ is usually necessary” to overcome qualified immunity when probable cause is at issue) (citation omitted); E. D. v. Sharkey, 928 F.3d 299, 308 (3d Cir. 2019) (noting that Sharkey “committed institutional sexual assault in violation of” a Pennsylvania statute that “forbids an employee of a residential facility serving children and youth from having sexual intercourse with a detainee, regardless of whether the detainee gave consent,” and stating “[t]hat Sharkey’s conduct was illegal renders E.D.’s right to be free from sexual assault so obvious that it could be deemed clearly established even without materially similar cases”) (citations and internal quotation marks omitted); Russell v. Richardson, 905 F.3d 239, 252 (3d Cir. 2018) (finding an “obvious case” where marshal used deadly force against a minor as he exited his bedroom wearing only underwear, and there was no indication the minor “was then engaged in any misconduct beyond disobeying his mother”); Kane v. Barger, 902 F.3d 185 (3d Cir. 2018) (relying on some analogous cases in rejecting qualified immunity for a police officer who touched the victim of a sexual assault and photographed her intimate areas with his personal cell phone for personal gratification rather than investigate ends, but also stating, “given the egregiousness of Barger’s violation of Kane’s personal security and bodily integrity, the right here is so ‘obvious’ that it could be deemed clearly established even without materially similar cases”).

Courts should not “define clearly established law at a high level of generality” and should not “cherry-pick[]” the aspects of Supreme Court opinions that would weigh in favor of the conclusion that a right was clearly established while ignoring reasons to think the right was not clearly established. Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2084-85 (2011); Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (“When courts are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability.”); Kisela v. Hughes, 138 S. Ct. 1148 (2018) (noting that even if controlling circuit precedent could constitute clearly established law, the most analogous precedent favored the officer); Safford Unified School Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2644 (2009) (“[T]he cases viewing school strip searches differently from the way we see them are numerous enough, with well reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law.”); Stanton v. Sims, 134 S. Ct. 3 (2013) (summarily reversing for failure to recognize qualified immunity and stating that it is “especially troubling” that the court of appeals “would conclude that [the officer] was plainly incompetent – and subject to personal liability in damages – based on actions that were lawful according to courts in the jurisdiction where he acted”); James v. New Jersey State Police, 957 F.3d 165 (3d Cir. 2020) (holding that officer was protected by qualified immunity because case was most similar to Kisela, officer knew that the man he shot (1) had violated a restraining order; (2) possessed a firearm that he had brandished within the last hour; and (3) was reportedly mentally ill and may have been off his medication, and distinguishing Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002), in part because of this knowledge); Davenport v. Borough of Homestead, 870 F.3d 273, 282 (3d Cir. 2017) (holding that police officers were protected by qualified immunity because of the “near absence of cases” dealing with the rights of a passenger involved in a dangerous vehicle pursuit); Fields v. City of Philadelphia, 862 F.3d 353, 361-62 (3d Cir. 2017) (because other cases recognizing a first amendment right to photograph the police were arguably distinguishable, they did not establish that right clearly enough to overcome qualified immunity); Ray v. Township of Warren, 626 F.3d 170, 177 (3d Cir. 2010) (holding that the inapplicability of the community caretaking doctrine to warrantless entries into homes was not clearly established in light of, inter alia, “the conflicting precedents on this issue from other Circuits); Marcavage v. National Park Serv., 666 F.3d 856, 857, 859-60 (3d Cir. 2012) (holding that plaintiff’s conviction for misdemeanors stemming from events at issue supported qualified immunity defense of arresting officer and his supervisor, even though conviction was later reversed). See also City of Escondido v. Emmons, 139 S. Ct. 500, 502, 504 (2019) (holding that the formulation of the clearly established right by the court of appeals—the “right to be free of excessive force”—“was far too general”); White v. Pauly, 137 S. Ct. 548, 552 (2017) (reiterating the need to avoid a high level of generality and stating that the factual uniqueness of the case “alone should have been an important indication” that the defendant did not violate clearly established law); Mann v. Palmerton Area School District, 872 F.3d 165, 174 (3d Cir. 2017) (holding that “it was not so plainly obvious that requiring a student-athlete, fully clothed in protective gear, to continue to participate in practice after sustaining a violent hit and exhibiting concussion symptoms implicated the student athlete’s constitutional rights”); Barna v. Board of School Directors of the Panther Valley School District, 877 F.3d 136, 144 (3d Cir. 2017) (observing that “there was, at best, disagreement in the Courts of Appeals as to the existence of a clearly established right to participate in school board meetings despite engaging in a pattern of threatening and disruptive behavior”). Cf. Williams v. City of York, 967 F.3d 252 (3d Cir. 2020) (holding that defendants alleged to have made arrest without probable were protected by qualified immunity because of uncertainty in state law).

Courts should also be cautious about concluding that the law is clearly established based only on one or two opinions from their own circuit. Taylor v. Barkes, 135 S. Ct. 2042 (2015) (summarily reversing Court of Appeals for the Third Circuit); Carroll v. Carman, 135 S. Ct. 348 (2014) (same). See also District of Columbia v. Wesby, 138 S. Ct. 577, 591 n.8 (2018) (noting that the Court has not yet decided what precedents, other than its own, qualify as controlling authority for purposes of qualified immunity); Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 763 (3d Cir. 2019) (concluding, based on a robust consensus in the courts of appeals, that the “right not to face retaliation for [one’s] leadership role in a public union was clearly established at the relevant time”); United States v. Baroni, 909 F.3d 550, 588 (3d Cir. 2018) (applying qualified immunity precedents in a case arising under 18 U.S.C. §§ 241 and 242, and holding that “although four circuits (including our own) have found some form of a constitutional right to intrastate travel, there is hardly a ‘robust consensus’ that the right exists, let alone clarity as to its contours,” and therefore, even though a prior circuit decision “is both clear and binding in our jurisdiction,” that decision did not provide “fair warning” that the “conduct was illegal, especially in view of the state of the law in our sister circuits”), rev’d on other grounds, Kelly v. United States, 140 S. Ct. 1565 (2020); Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 144–45 (3d Cir. 2017) (“Even if a right can be clearly established by circuit precedent despite disagreement in the courts of appeals, there does not appear to be any such consensus — much less the robust consensus — that we require”) (internal quotation marks and citation omitted); Mammaro v. New Jersey Div. of Child Prot. & Permanency, 814 F.3d 164, 171 (3d Cir. 2016) (distinguishing its one prior decision, putting aside the question of whether one such case would be sufficient, and noting that the district court was wrong to rely on an unpublished district court decision that postdated the events in the case). But see Sauers v. Borough of Nesquehoning, 905 F.3d 711, 715, 723 (3d Cir. Oct. 2, 2018) (acknowledging circuit split, while stating, “We hope... to establish the law clearly now,” and “our opinion today should resolve any ambiguity.... within this Circuit.”). Cf. Bryan v. United States, 913 F.3d 356, 363 (3d Cir. 2019) (“For purposes of qualified immunity, a legal principle does not become ‘clearly established’ the day we announce a decision, or even one or two days later.”).

It is nonetheless possible for a principle of law to be clearly established, even if a member of the court does not believe that principle to be a correct statement of the law at all. In Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016), overruled on other grounds, Mack v. Yost, 986 F.3d 311 (3d Cir. 2020), while acknowledging that it had never before held that a prisoner’s oral grievance was constitutionally protected, the court nevertheless denied qualified immunity, holding that the right of a prisoner to be free from retaliatory termination of his job for exercising his right to petition was clearly established, over a dissent that would have held that, in the context of a prisoner’s retaliation claim, “oral complaints should not be considered protected conduct under the First Amendment.” Id. at 306. See also Groh v. Ramirez, 540 U.S. 551 (2004) (denying qualified immunity in a Fourth Amendment search case, over a dissent that found no constitutional violation).

Explaining its focus on reasonableness under the circumstances, the Court stated in Saucier that “[b]ecause ‘police officers are often forced to make split second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation,’... the reasonableness of the officer's belief as to the appropriate level of force should be judged from that on scene perspective.” Saucier, 533 U.S. at 205 (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). See also Bland v. City of Newark, 900 F.3d 77 (3d Cir. 2018) (upholding qualified immunity for officers who shot driver of car after it crashed and was entangled in scaffolding because Bland threatened to kill the officers, the officers had reason to believe Bland was armed, and the officers had seen Bland extricate the car he was driving from an earlier crash and continue to flee); Mammaro v. New Jersey Div. of Child Prot. & Permanency, 814 F.3d 164, 171 (3d Cir. 2016) (finding child protection caseworkers protected by qualified immunity and noting “that the failure to act quickly and decisively in these situations may have devastating consequences for vulnerable children”). Conversely, the court of appeals has suggested that qualified immunity analysis can take into account the fact that a defendant had time to deliberate before acting. See Reedy v. Evanson, 615 F.3d 197, 224 n.37 (3d Cir. 2010) (in the course of holding that summary judgment on qualified-immunity grounds was inappropriate, noting that “[t]here were no ‘split second’ decisions made in this case”).

Even in a context where the underlying constitutional violation requires a showing of objective unreasonableness, the issue of qualified immunity presents a distinct question. As the Court explained in Saucier,
[t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense. Saucier, 533 U.S. at 205.99

Questions relating to qualified immunity should not be put to the jury “routinely”; rather, “[i]mmunity ordinarily should be decided by the court long before trial.” Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam). If there are no disputes concerning the relevant historical facts, then qualified immunity presents a question of law to be resolved by the court.

However, “a decision on qualified immunity will be premature when there are unresolved disputes of historical fact relevant to the immunity analysis.” Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002) (“Curley I”); see also Reitz v. County of Bucks, 125 F.3d 139, 147 (3d Cir. 1997). Material disputes of historical fact must be resolved by the jury at trial.100 The question will then arise whether the jury should decide only the questions of historical fact, or whether the jury should also decide the question of objective reasonableness. See Curley I, 298 F.3d at 278 (noting that “the federal courts of appeals are divided on the question of whether the judge or jury should decide the ultimate question of objective reasonableness once all the relevant factual issues have been resolved”). Some Third Circuit decisions have suggested that it can be appropriate to permit the jury to decide objective reasonableness as well as the underlying questions of historical fact. See, e.g., Sharrar v. Felsing, 128 F.3d 810, 830-31 (3d Cir. 1997) (noting with apparent approval that the court in Karnes v. Skrutski, 62 F.3d 485 (3d Cir.1995), “held that a factual dispute relating to qualified immunity must be sent to the jury, and suggested that, at the same time, the jury would decide the issue of objective reasonableness”). On the other hand, the Third Circuit has also noted that the court can “decide the objective reasonableness issue once all the historical facts are no longer in dispute. A judge may use special jury interrogatories, for instance, to permit the jury to resolve the disputed facts upon which the court can then determine, as a matter of law, the ultimate question of qualified immunity.” Curley I, 298 F.3d at 279. And, more recently, the court has suggested that this ultimate question must be reserved for the court, not the jury. See Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004) (“The jury... determines disputed historical facts material to the qualified immunity question.... District Courts may use special interrogatories to allow juries to perform this function.... The court must make the ultimate determination on the availability of qualified immunity as a matter of law.”).101 Most recently, the court has stated that submitting the ultimate question of qualified immunity to the jury constitutes reversible error: “[W]hether an officer made a reasonable mistake of law and is thus entitled to qualified immunity is a question of law that is properly answered by the court, not a jury.... When a district court submits that question of law to a jury, it commits reversible error.” Curley v. Klem, 499 F.3d 199, 211 (3d Cir. 2007) (“Curley II”).102

The court, then, should not instruct the jury on qualified immunity.103 Rather, the court should determine (in consultation with counsel) what the disputed issues of historical fact are. The court should submit interrogatories to the jury on those questions of historical fact. Often, questions of historical fact will be relevant both to the existence of a constitutional violation and to the question of objective reasonableness; as to such questions, the court should instruct the jury that the plaintiff has the burden of proof.104 (The court may wish to include those interrogatories in the section of the verdict form that concerns the existence of a constitutional violation.) Other questions of historical fact, however, may be relevant only to the question of objective reasonableness; as to those questions, if any, the court should instruct the jury that the defendant has the burden of proof. (The court may wish to include those interrogatories in a separate section of the verdict form, after the sections concerning the prima facie case, and may wish to submit those questions to the jury only if the jury finds for the plaintiff on liability.)

One question that may sometimes arise is whether jury findings on the defendant’s subjective intent are relevant to the issue of qualified immunity. Decisions applying Harlow and Harlow’s progeny emphasize that the test for qualified immunity is an objective one, and that the defendant’s actual knowledge concerning the legality of the conduct is irrelevant.105 Admittedly, the reasons given in Harlow for rejecting the subjective test carry considerably less weight in the context of a court’s immunity decision based on a jury’s findings than they do at earlier points in the litigation: The Court stressed its concerns that permitting a subjective test would doom officials to intrusive discovery, see Harlow, 457 U.S. at 817 (noting that “[j]udicial inquiry into subjective motivation therefore may entail broad ranging discovery and the deposing of numerous persons, including an official's professional colleagues”), and would impede the use of summary judgment to dismiss claims on qualified immunity grounds, see id. at 818 (noting that “[r]eliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment”). Obviously, once a claim has reached a jury trial, concerns about discovery and summary judgment are moot. In order to reach the trial stage, the plaintiff must have successfully resisted summary judgment on qualified immunity grounds, based on the application of the objective reasonableness test. And the plaintiff must have done so without the benefit of discovery focused on the official’s subjective view of the legality of the conduct. If, at trial, the jury finds that the defendant actually knew the conduct to be illegal, it arguably would not contravene the policies stressed in Harlow if the court were to reject qualified immunity based on such a finding. Nonetheless, the courts’ continuing emphasis on the notion that the qualified immunity test excludes any element of subjective intent106 raises the possibility that reliance on the defendant’s actual knowledge could be held to be erroneous. As the Court has explained, “a defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant's subjective intent is simply irrelevant to that defense.” Crawford El v. Britton, 523 U.S. 574, 588 (1998).

In some cases, however, the defendant’s motivation may be relevant to the plaintiff’s claim. See id. In such cases, the circumstances relevant to the qualified immunity determination may include the defendant’s subjective intent. For example, in a First Amendment retaliation case argued and decided after Crawford-El, the Third Circuit explained:
The qualified immunity analysis requires a determination as to whether reasonable officials could believe that their conduct was not unlawful even if it was in fact unlawful.... In the context of a First Amendment retaliation claim, that determination turns on an inquiry into whether officials reasonably could believe that their motivations were proper even when their motivations were in fact retaliatory. Even assuming that this could be demonstrated under a certain set of facts, it is an inquiry that cannot be conducted without factual determinations as to the officials' subjective beliefs and motivations.... Larsen v. Senate of Com. of Pa., 154 F.3d 82, 94 (3d Cir. 1998); see also Monteiro v. City of Elizabeth, 436 F.3d 397, 404 (3d Cir. 2006) (“In cases in which a constitutional violation depends on evidence of a specific intent, ‘it can never be objectively reasonable for a government official to act with the intent that is prohibited by law’”) (quoting Locurto v. Safir, 264 F.3d 154, 169 (2d Cir. 2001)). In some cases where the plaintiff must meet a stringent test (on the merits) concerning the defendant’s state of mind, the jury’s finding that the defendant had that state of mind forecloses a defense of qualified immunity.107 In those cases, the jury’s decision on the defendant’s state of mind will also determine the qualified immunity question.108

Not all Section 1983 defendants will be entitled to assert a qualified immunity defense. See, e.g., Richardson v. McKnight, 521 U.S. 399, 401 (1997) (holding that “prison guards who are employees of a private prison management firm” are not “entitled to a qualified immunity from suit by prisoners charging a violation of 42 U.S.C. § 1983”); Wyatt v. Cole, 504 U.S. 158, 159 (1992) (holding that “private defendants charged with 42 U.S.C. § 1983 liability for invoking state replevin, garnishment, and attachment statutes later declared unconstitutional” cannot claim qualified immunity); Owen v. City of Independence, Mo., 445 U.S. 622, 657 (1980) (holding that “municipalities have no immunity from damages liability flowing from their constitutional violations”). But see Filarsky v. Delia, 132 S. Ct. 1657, 1665, 1667-68 (2012) (reasoning that “immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis,” and holding that a private attorney hired by a municipality to help conduct an administrative investigation was entitled to assert qualified immunity).

The Court has left undecided whether private defendants who cannot claim qualified immunity should be able to claimgood faithimmunity. See Wyatt, 504 U.S. at 169 (“[W]e do not foreclose the possibility that private defendants faced with § 1983 liability... could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens.”); id. at 169-75 (Kennedy, J., joined by Scalia, J., concurring) (arguing in favor of a good faith defense); Richardson, 521 U.S. at 413 (declining to determine “whether or not... private defendants... might assert, not immunity, but a special ‘good faithdefense”). Taking up the issue thus left open in Wyatt, the Third Circuit has held that “private actors are entitled to a defense of subjective good faith.” Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir. 1994). The discussion in Jordan focused on the question in the context of a due process claim arising from a creditor’s execution on a judgment. See id. at 1276 (explaining that “a creditor's subjective appreciation that its act deprives the debtor of his constitutional right to due process” would show an absence of good faith).


(Last Updated July 2019)

Footnotes

97 Violation of a clearly established state-law right does not defeat qualified immunity regarding the violation of federal law. Davis v. Scherer, 468 U.S. 183, 194 (1984). Nor do actions contrary to the officer’s training themselves “negate qualified immunity where it would otherwise be warranted.” City & Cnty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1777 (2015); cf. E. D. v. Sharkey, 928 F.3d 299, 308 (3d Cir. 2019) (relying on the criminality of the conduct under state law to reject qualified immunity); Young v. Martin, 801 F.3d 172 (3d Cir. 2015) (holding that knowledge that one is violating prison regulations is relevant to determining whether defendants had fair warning that their treatment of an inmate was unconstitutional).
98 See Pearson, 555 U.S. at 236-43 (discussing relevant factors in exercising this discretion); Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) (addressing whether the officers’ conduct violated the Fourth Amendment and explaining that doing so would be beneficial in developing constitutional precedent in an area that courts typically consider in cases in which the defendant asserts a qualified immunity defense); City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775 (2015) (declining to address the Fourth Amendment issue “because this question has not been adequately briefed”); Wesby, 138 S. Ct. at 589, n.7 (reaching the merits because “a decision on qualified immunity alone would not have resolved all of the claims”). Compare Zalogo v. Borough of Moosic, 841 F.3d 170, 171 (3d Cir. 2016) (declining to address the merits of the underlying constitutional question, noting that to do so would require grappling with the tension between the defendant’s right to speak and the plaintiff’s right to be free of government retaliation, and the “doctrine of constitutional avoidance counsels against unnecessarily wading into such muddy terrain”) with Williams v. Sec’y Pennsylvania Dep’t of Corr., 848 F.3d 549, 558 (3d Cir. 2017) (deciding to address the merits of the underlying constitution question because of its salience “to the ongoing societal debate about solitary confinement” and to provide “clear statements about what the law allows” to prison officials) and Fields v. City of Philadelphia, 862 F.3d 353, 357-58 (3d Cir. 2017) (reaching the merits of first amendment issue because of the recurrence of the issue, the ubiquity of smartphones, the contribution of police recordings to national discussion of proper policing, and the excellent briefing in the case). See also Egolf v. Witmer, 526 F.3d 104, 110 (3d Cir. 2008) (holding, even prior to Pearson, that “the underlying principle of law elaboration is not meaningfully advanced in situations... when the definition of constitutional rights depends on a federal court's uncertain assumptions about state law”); Montanez v. Thompson, 603 F.3d 243, 251 (3d Cir. 2010) (following Egolf after Pearson).
99 The Court of Appeals has distinguished between the underlying excessive-force inquiry and the qualified-immunity inquiry by characterizing the former as a question of fact and the latter as a question of law. See Curley v. Klem, 499 F.3d 199, 214 (3d Cir. 2007) (“Curley II”) (“[W]e think the most helpful approach is to consider the constitutional question as being whether the officer made a reasonable mistake of fact, while the qualified immunity question is whether the officer was reasonably mistaken about the state of the law.”).
100 See, e.g., Estate of Smith v. Marasco, 430 F.3d 140, 152-53 (3d Cir. 2005) (“Marcantino... claimed that he gave Fetterolf no directions. At this stage, however, we must assume that a jury would credit Fetterolf's version. If Marcantino did, in fact, approve the decision to enter the residence as well as the methods employed to do so, he is not entitled to qualified immunity.”). See also Tolan v. Cotton, 134 S.Ct. 1861 (2014) (per curiam) (emphasizing that the fundamental principle of summary judgment practice — that reasonable inferences should be drawn in favor of the nonmoving party — governs qualified immunity determinations).
101 Admittedly, this statement in Carswell was dictum: The court in Carswell affirmed the district court’s grant of judgment as a matter of law at the close of plaintiff’s case in chief. See Carswell, 381 F.3d at 239, 245. See also Harvey v. Plains Twp. Police Dept., 421 F.3d 185, 194 n.12 (3d Cir. 2005) (citing Carswell and Curley I with approval).
102 Under Carswell’s dictum, in cases where there exist material disputes of historical fact, the best approach is for the jury to answer special interrogatories concerning the historical facts and for the court to determine the question of objective reasonableness consistent with the jury’s interrogatory answers. See Carswell, 381 F.3d at 242 & n.2; see also Stephenson v. Doe, 332 F.3d 68, 80 n.15, 81 (2d Cir. 2003) (noting that the difficult nature of qualified immunity doctrine “inherently makes for confusion,” and stating that on remand the trial court should use special interrogatories if jury findings are necessary with respect to issues relating to qualified immunity); but see Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th Cir. 1994) (“[S]ending the factual issues to the jury but reserving to the judge the ultimate ‘reasonable officer’ determination leads to serious logistical difficulties. Special jury verdicts would unnecessarily complicate easy cases, and might be unworkable in complicated ones.”).
103 Though the Curley II court stressed that “that the second step in the Saucier analysis, i.e., whether an officer made a reasonable mistake about the legal constraints on police action and is entitled to qualified immunity, is a question of law that is exclusively for the court,” it noted in dictum the possibility of using the jury, in an advisory capacity, to determine questions relating to qualified immunity: “When the ultimate question of the objective reasonableness of an officer's behavior involves tightly intertwined issues of fact and law, it may be permissible to utilize a jury in an advisory capacity... but responsibility for answering that ultimate question remains with the court.” Curley II, 499 F.3d at 211 n.12.
104 For a further discussion of burdens of proof in this context, see supra Comment 4.2.
105 See, e.g., Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997) (“[T]he officer's subjective beliefs about the legality of his or her conduct generally ‘are irrelevant.’”) (quoting Anderson, 483 U.S. at 641); Grant v. City of Pittsburgh, 98 F.3d 116, 123-24 (3d Cir. 1996) (“It is now widely understood that a public official who knows he or she is violating the constitution nevertheless will be shielded by qualified immunity if a ‘reasonable public official’ would not have known that his or her actions violated clearly established law.”)

Justice Brennan’s concurrence in Harlow, quoting language from the majority opinion, asserted that the Court’s standard “would not allow the official who actually knows that he was violating the law to escape liability for his actions, even if he could not ‘reasonably have been expected’ to know what he actually did know.... Thus the clever and unusually well informed violator of constitutional rights will not evade just punishment for his crimes.” Harlow, 457 U.S. at 821 (Brennan, J., joined by Marshall & Blackmun, JJ., concurring). The quoted language from the majority opinion, however, appears to refer to cases in which the defendant’s conduct in fact violated clearly established law:
If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors. Harlow, 457 U.S. at 818-19.

In certain instances reliance on legal advice can constitute such an extraordinary circumstance. The court of appeals has held “that a police officer who relies in good faith on a prosecutor's legal opinion that [an] arrest is warranted under the law is presumptively entitled to qualified immunity from Fourth Amendment claims premised on a lack of probable cause.” Kelly v. Borough of Carlisle, 622 F.3d 248, 255-56 (3d Cir. 2010). However, “a plaintiff may rebut this presumption by showing that, under all the factual and legal circumstances surrounding the arrest, a reasonable officer would not have relied on the prosecutor's advice.” Id. Cf. Bryan v. United States, 913 F.3d 356, 363 (3d Cir. 2019) (holding, in a case where the challenged action happened within days after a court of appeals decision recognizing a right, that “a legal principle does not become ‘clearly established’ the day we announce a decision, or even one or two days later,” rather than holding that the law was clearly established but that in such circumstances the defendants “neither knew nor should have known of the relevant legal standard”).

106 See, e.g., Berg v. County of Allegheny, 219 F.3d 261, 272 (3d Cir. 2000) (“The inquiry [concerning qualified immunity] is an objective one; the arresting officer's subjective beliefs about the existence of probable cause are not relevant.”). However, a qualified immunity analysis concerning probable cause will take into account what facts the defendant knew at the relevant time. See Gilles v. Davis, 427 F.3d 197, 206 (3d Cir. 2005) (“[W]hether it was reasonable to believe there was probable cause is in part based on the limited information that the arresting officer has at the time.”); see also Harvey v. Plains Twp. Police Dept., 421 F.3d 185, 194 (3d Cir. 2005) (stating in context of a Fourth Amendment claim that qualified immunity analysis “involv[es] consideration of both the law as clearly established at the time of the conduct in question and the information within the officer's possession at that time”); Blaylock v. City of Philadelphia, 504 F.3d 405, 411 (3d Cir. 2007) (citing Hunter v. Bryant, 502 U.S. 224, 228 29 (1991), and Anderson v. Creighton, 483 U.S. 635, 641 (1987)); Burns v. PA Dep’t of Corrections, 642 F.3d 163, 177 & n.12 (3d Cir. 2011).
107 See Monteiro, 436 F.3d at 405 (“Perkins Auguste's argument that she could have conceivably (and constitutionally) ejected Monteiro on the basis of his disruptions is unavailing in the face of a jury verdict concluding that she acted with a motive to suppress Monteiro's speech on the basis of viewpoint.”).

Similarly, the Eleventh Circuit noted Saucier’s holding that the qualified immunity inquiry is distinct from the merits of the claim, but explained:
It is different with claims arising from the infliction of excessive force on a prisoner in violation of the Eighth Amendment Cruel and Unusual Punishment Clause. In order to have a valid claim... the excessive force must have been sadistically and maliciously applied for the very purpose of causing harm. Equally important, it is clearly established that all infliction of excessive force on a prisoner sadistically and maliciously for the very purpose of causing harm and which does cause harm violates the Cruel and Unusual Punishment Clause. So, where this type of constitutional violation is established there is no room for qualified immunity. It is not just that this constitutional tort involves a subjective element, it is that the subjective element required to establish it is so extreme that every conceivable set of circumstances in which this constitutional violation occurs is clearly established to be a violation of the Constitution.... Johnson v. Breeden, 280 F.3d 1308, 1321-22 (11th Cir. 2002).

108 The Third Circuit has held that the showing of subjective deliberate indifference necessary to establish an Eighth Amendment conditions-of-confinement claim necessarily negates the defendant’s claim to qualified immunity. Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001) (“Because deliberate indifference under Farmer requires actual knowledge or awareness on the part of the defendant, a defendant cannot have qualified immunity if she was deliberately indifferent.”).

The Supreme Court’s decision in Saucier does not necessarily undermine the Third Circuit’s reasoning in Beers-Capitol. Admittedly, the Third Circuit decided Beers-Capitol a week before the Supreme Court decided Saucier; but Saucier’s holding (concerning Fourth Amendment excessive force claims) followed the earlier holding in Anderson v. Creighton, 483 U.S. 635, 640 (1987) (concerning Fourth Amendment search claims). Anderson and Saucier can be distinguished from Beers-Capitol. Because an official can make a reasonable mistake as to whether a particular action is reasonable, qualified immunity is available even where the contours of the relevant constitutional right depend “upon an assessment of what accommodation between governmental need and individual freedom is reasonable.” Anderson, 483 U.S. at 644. By contrast, if the relevant constitutional standard requires that the defendant actually knew of an excessive risk (as in the case of an Eighth Amendment violation), qualified immunity seems paradoxical: It is difficult to argue that a reasonable officer in the defendant’s shoes could not be expected to know the defendant’s conduct was unlawful when the defendant actually knew of the excessive risk.

However, the Supreme Court’s subsequent decision in Hope v. Pelzer, 536 U.S. 730 (2002), does raise some doubt as to the validity of the Third Circuit’s conclusion. In Hope, the Court held that the plaintiff’s allegations, if true, established an Eighth Amendment claim. See id. at 737-38. In doing so, it referred both to deliberate indifference (suggesting that it was applying a conditions of confinement analysis) and to the gratuitous infliction of wanton and unnecessary pain (suggesting that it was applying an excessive force analysis). Id. It then proceeded to analyze whether it would have been clear to a reasonable official under the circumstances that the conduct at issue violated a clearly established constitutional right, see id. at 739. Although the majority ultimately concluded that the defendants were not entitled to qualified immunity, it did so on the ground that caselaw, a state regulation and a DOJ report should have made it obvious to a reasonable official that the conduct was unconstitutional. See id. at 741-42. If a showing of Eighth Amendment deliberate indifference (or the gratuitous infliction of wanton and unnecessary pain) automatically negates a defendant’s claim of qualified immunity, then the Court could have relied upon that ground to reverse the grant of summary judgment to the defendants in Hope; thus, the fact that the Court instead analyzed the question of qualified immunity without mentioning the possible relevance of the showing of deliberate indifference (or the gratuitous infliction of wanton and unnecessary pain) suggests that the Court did not view that showing as dispositive of the qualified immunity question. On the other hand, the plaintiff in Hope apparently did not argue that the showing of deliberate indifference (or the gratuitous infliction of wanton and unnecessary pain) negated the claim of qualified immunity, so it may be that the Court simply did not consider that theory in deciding Hope. (In Whitley v. Albers, 475 U.S. 312 (1986), the court of appeals had stated that “[a] finding of [Eighth Amendment] deliberate indifference is inconsistent with a finding of... qualified immunity,” Albers v. Whitley, 743 F.2d 1372, 1376 (9th Cir. 1984), but the Supreme Court refused to address this contention because the Court reversed the judgment on other grounds, see 475 U.S. at 327-28.) In Young v. Martin, 801 F.3d 172 (3d Cir. 2015), the court of appeals decided that Hope was best read as an excessive force case, reversed summary judgment for defendants on the merits of the Eighth Amendment claim, and remanded for consideration of the qualified immunity question. It did not address whether it is possible to find that a defendant who gratuitously inflicted wanton and unnecessary pain was nonetheless entitled to qualified immunity.

4 PJI 7.3 | SECTION 1983 - RELEASE-DISMISSAL AGREEMENT

[Defendant] asserts that [plaintiff] agreed to release [plaintiff’s] claims against [defendant], in exchange for the dismissal of the criminal charges against [plaintiff]. In order to rely on such a release as a defense against [plaintiff’s] claims, [defendant] must prove both of the following things:

First, [defendant] must prove that the prosecutor acted for a valid public purpose when [he/she] sought a release from [plaintiff]. [Defendant] asserts that the prosecutor sought the release because the prosecutor [wanted to protect the complaining witness from having to testify at [defendant’s] trial]. I instruct you that [protecting the complaining witness from having to testify at trial] is a valid public purpose; you must decide whether that purpose actually was the prosecutor’s purpose in seeking the release. In other words, [defendant] must prove by a preponderance of the evidence that the reason the prosecutor sought the release from [plaintiff] was [to protect the complaining witness from having to testify at trial].

Second, [defendant] must prove [by clear and convincing evidence]109 [by a preponderance of the evidence]110 that [plaintiff] agreed to the release and that [plaintiff’s] decision to agree to the release was deliberate, informed and voluntary.111 To determine whether [plaintiff] made a deliberate, informed and voluntary decision to agree to the release, you should consider all relevant circumstances, including [list any of the following factors, and any other factors, warranted by the evidence]:

• The words of the written release that [plaintiff] signed;

• Whether [plaintiff] was in custody at the time [he/she] entered into the release;

• Whether [plaintiff’s] background and experience helped [plaintiff] to understand the terms of the release;

• Whether [plaintiff] was represented by a lawyer, and if so, whether [plaintiff’s] lawyer wrote the release;

• Whether [plaintiff] agreed to the release immediately or whether [plaintiff] took time to think about it;

• Whether [plaintiff] expressed any unwillingness to enter into the release; and

• Whether the terms of the release were clear.


COMMENT The validity of release-dismissal agreements waiving potential Section 1983 claims is reviewed on a case-by-case basis. See Town of Newton v. Rumery, 480 U.S. 386, 392 (1987).112 To be enforced, the agreement must be “executed voluntarily, free from prosecutorial misconduct and not offensive to the relevant public interest.” Cain v. Darby Borough, 7 F.3d 377, 380 (3d Cir. 1993) (in banc) (citing Rumery).

The defense has the burden of showing voluntariness, see Livingstone v. North Belle Vernon Borough, 12 F.3d 1205, 1211 (3d Cir. 1993) (in banc), and if the release was oral rather than written then voluntariness must be proven by clear and convincing evidence, see Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 534-36 (3d Cir. 1996); see also Livingstone, 12 F.3d at 1212-13 (noting reasons why written releases are preferable).113 The inquiry is fact-specific. See Livingstone, 12 F.3d at 1210-11 (listing types of factors relevant to voluntariness). To the extent that the question whether the plaintiff made a “deliberate, informed and voluntary waiver” presents issues of witness credibility concerning the plaintiff’s state of mind, the question should be submitted to the jury. Livingstone, 12 F.3d at 1215 n.9.

The defense must also show “that upon balance the public interest favors enforcement.” Cain, 7 F.3d at 381; see also Livingstone, 12 F.3d at 1215 (discussing possible public interest rationales for releases); Livingstone, 91 F.3d at 527 (noting the “countervailing interest... in detecting and deterring official misconduct”); id. at 528-29 (assessing possible rationales).114 “The standard for determining whether a release meets the public interest requirement is an objective one, based upon the facts known to the prosecutor when the agreement was reached.” Cain, 7 F.3d at 381. Moreover, “the public interest reason proffered by the prosecutor must be the prosecutor's actual reason for seeking the release.” Id.; see also Livingstone, 91 F.3d at 530 n.17. If, instead, “the decision to pursue a prosecution, or the subsequent decision to conclude a release dismissal agreement, was motivated by a desire to protect public officials from liability,” the release should not be enforced. Livingstone, 91 F.3d at 533.115

“[P]rotecting public officials from civil suits may in some cases provide a valid public interest and justify the enforcement of a release dismissal agreement.” Cain, 7 F.3d at 383. But “there must first be a case specific showing that the released civil rights claims appeared to be marginal or frivolous at the time the agreement was made and that the prosecutor was in fact motivated by this reason.” Id.116 Whether the claims appeared to be marginal or frivolous should be assessed on the basis of the information that the prosecutor “knew or should have known” at the time. Livingstone, 91 F.3d at 532. If the claims did appear marginal or frivolous based on the information that the prosecutor knew and/or should have known, the court should then address “the further question whether enforcement of a release dismissal agreement in the face of substantial evidence of police misconduct would be compatible with Rumery and Cain, notwithstanding that the evidence of misconduct was not known, or reasonably knowable, by the prosecutor at the time.” Livingstone, 91 F.3d at 532.

The objective inquiry (whether there existed a valid public interest in the release) is for the court,117 but the subjective inquiry (whether that interest was the prosecutor’s actual reason) is for the jury. See Livingstone, 12 F.3d at 1215. “The party seeking to enforce the release dismissal agreement bears the burden of proof on both of these elements.” Livingstone, 91 F.3d at 527.

(Last Updated July 2019)

Footnotes

109 If the release was oral, the defendant must prove voluntariness by clear and convincing evidence.
110 The Court of Appeals has not determined the appropriate standard of proof of voluntariness in the case of a written release.
111 If more than one defendant seeks to assert the release as a defense, the court, if the plaintiff so requests, should require the jury to consider voluntariness with respect to potential claims against each specific defendant. See Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 526 n.13 (3d Cir. 1996).
112 “Whereas... the validity of a release dismissal for a section 1983 claim is governed exclusively by federal law... , the validity of any purported release of... state claims... is governed by state law.” Livingstone v. North Belle Vernon Borough, 12 F.3d 1205, 1209 n.6 (1993) (in banc); see also Livingstone, 91 F.3d at 539 (discussing treatment of release-dismissal agreements under Pennsylvania law).
113 See also Livingstone, 91 F.3d at 536 n.34 (declining to “address the appropriate standard of proof for enforcement of a written release dismissal agreement”).
114 See also Seth F. Kreimer, Releases, Redress, and Police Misconduct: Reflections on Agreements to Waive Civil Rights Actions in Exchange for Dismissal of Criminal Charges, 136 U. Pa. L. Rev. 851, 928 (1988) (noting that release-dismissal agreements pose “a substantial cost to first amendment rights, the integrity of the criminal process, and the purposes served by section 1983”).
115 “[T]he concept of prosecutorial misconduct is embedded in [the] larger inquiry into whether enforcing the release would advance the public interest.” Cain, 7 F.3d at 380.
116 “As a general matter, civil rights claims based on substantial evidence of official misconduct will not be either marginal or frivolous. But this may not be true in every case. For instance, if the official involved would clearly have absolute immunity for the alleged misconduct, then a subsequent civil rights suit might indeed be marginal, whether or not there is substantial evidence that the misconduct occurred.” Livingstone, 91 F.3d at 530 n.18.
117 “The process of weighing the evidence of police misconduct against the prosecutor's asserted reasons for concluding a release dismissal agreement is part of the broad task of balancing the public interests that favor and that disfavor enforcement. That task is one for the court.” Livingstone, 91 F.3d at 533 n.28.

4 PJI 8.1 | SECTION 1983 - COMPENSATORY DAMAGES

I am now going to instruct you on damages. Just because I am instructing you on how to award damages does not mean that I have any opinion on whether or not [defendant] should be held liable.

If you find [defendant] liable, then you must consider the issue of compensatory damages. You must award [plaintiff] an amount that will fairly compensate [him/her] for any injury [he/she] actually sustained as a result of [defendant’s] conduct.

[Plaintiff] must show that the injury would not have occurred without [defendant’s] act [or omission]. [Plaintiff] must also show that [defendant’s] act [or omission] played a substantial part in bringing about the injury, and that the injury was either a direct result or a reasonably probable consequence of [defendant’s] act [or omission]. [There can be more than one cause of an injury. To find that [defendant’s] act [or omission] caused [plaintiff’s] injury, you need not find that [defendant’s] act [or omission] was the nearest cause, either in time or space. However, if [plaintiff’s] injury was caused by a later, independent event that intervened between [defendant’s] act [or omission] and [plaintiff’s] injury, [defendant] is not liable unless the injury was reasonably foreseeable by [defendant].]

Compensatory damages must not be based on speculation or sympathy. They must be based on the evidence presented at trial, and only on that evidence. Plaintiff has the burden of proving compensatory damages by a preponderance of the evidence.

[Plaintiff] claims the following items of damages [include any of the following – and any other items of damages – that are warranted by the evidence and permitted under the law governing the specific type of claim]:

• Physical harm to [plaintiff] during and after the events at issue, including ill health, physical pain, disability, disfigurement, or discomfort, and any such physical harm that [plaintiff] is reasonably certain to experience in the future. In assessing such harm, you should consider the nature and extent of the injury and whether the injury is temporary or permanent.

• Emotional and mental harm to [plaintiff] during and after the events at issue, including fear, humiliation, and mental anguish, and any such emotional and mental harm that [plaintiff] is reasonably certain to experience in the future.118

• The reasonable value of the medical [psychological, hospital, nursing, and similar] care and supplies that [plaintiff] reasonably needed and actually obtained, and the present value119 of such care and supplies that [plaintiff] is reasonably certain to need in the future.

• The [wages, salary, profits, reasonable value of the working time] that [plaintiff] has lost because of [his/her] inability [diminished ability] to work, and the present value of the [wages, etc.] that [plaintiff] is reasonably certain to lose in the future because of [his/her] inability [diminished ability] to work.

• The reasonable value of property damaged or destroyed.

• The reasonable value of legal services that [plaintiff] reasonably needed and actually obtained to defend and clear [him/her]self.120

• The reasonable value of each day of confinement after the time [plaintiff] would have been released if [defendant] had not taken the actions that [plaintiff] alleges.121


[Each plaintiff has a duty under the law to "mitigate" his or her damages – that means that the plaintiff must take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage caused by the defendant. It is [defendant's] burden to prove that [plaintiff] has failed to mitigate. So if [defendant] persuades you by a preponderance of the evidence that [plaintiff] failed to take advantage of an opportunity that was reasonably available to [him/her], then you must reduce the amount of [plaintiff’s] damages by the amount that could have been reasonably obtained if [he/she] had taken advantage of such an opportunity.]

[In assessing damages, you must not consider attorney fees or the costs of litigating this case. Attorney fees and costs, if relevant at all, are for the court and not the jury to determine. Therefore, attorney fees and costs should play no part in your calculation of any damages.]

COMMENT “[W]hen § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts.” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 306 (1986); see also Allah v. Al Hafeez, 226 F.3d 247, 250 (3d Cir. 2000) (“It is well settled that compensatory damages under § 1983 are governed by general tort law compensation theory.”).122

“[A] Section 1983 plaintiff must demonstrate that the defendant's actions were the proximate cause of the violation of his federally protected right.” Rivas v. City of Passaic, 365 F.3d 181, 193 (3d Cir. 2004) (discussing defendants’ contentions that their conduct did not “proximately cause[] [the decedent’s] death”). The requirement is broadly equivalent to the tort law’s concept of proximate cause. See, e.g, Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000) (“It is axiomatic that ‘[a] § 1983 action, like its state tort analogs, employs the principle of proximate causation.’”) (quoting Townes v. City of New York, 176 F.3d 138, 146 (2d Cir. 1999)); Johnson v. Philadelphia, 837 F.3d 343, 352 (3d Cir. 2016) (holding that even if a police officer acted unreasonably in his initial approach to an obviously disturbed man, the causal chain between that initial approach and the officer’s killing of that man was broken by the man’s “sudden, unexpected attack that instantly forced the officer into a defensive fight for his life” and that included the man attempting to grab the officer’s gun out of its holster). Thus, Instruction 4.8.1 reflects general tort principles concerning causation and compensatory damages.

With respect to future injury, the Eighth Circuit’s model instructions require that the plaintiff prove the injury is “reasonably certain” to occur. See Eighth Circuit (Civil) Instruction 4.51. Although the Committee is not aware of Third Circuit caselaw directly addressing this issue, some precedents from other circuits do provide support for such a requirement. See Stengel v. Belcher, 522 F.2d 438, 445 (6th Cir. 1975) (“The Court properly instructed the jury that Stengel could recover damages only for injury suffered as a proximate result of the shooting, and for future damages which were reasonably certain to occur.”), cert. dismissed, 429 U.S. 118 (1976); Henderson v. Sheahan, 196 F.3d 839, 849 (7th Cir. 1999) (“Damages may not be awarded on the basis of mere conjecture or speculation; a plaintiff must prove that there is a reasonable certainty that the anticipated harm or condition will actually result in order to recover monetary compensation.”); cf. Slicker v. Jackson, 215 F.3d 1225, 1232 (11th Cir. 2000) (“[A]n award of nominal damages may be appropriate when the plaintiff's injuries have no monetary value or when they are not quantifiable with reasonable certainty.”). On the other hand, language in some other opinions suggest that something less than “reasonable certainty,” such as “reasonable likelihood,” might suffice. See, e.g., Ruiz v. Gonzalez Caraballo, 929 F.2d 31, 35 (1st Cir. 1991) (in assessing jury’s award of damages, taking into account evidence that the plaintiff’s “post traumatic stress syndrome would likely require extensive future medical treatment at appreciable cost”); Lawson v. Dallas County, 112 F. Supp. 2d 616, 636 (N.D. Tex. 2000) (plaintiff is “entitled to recover compensatory damages for the physical injury, pain and suffering, and mental anguish that he has suffered in the past – and is reasonably likely to suffer in the future – because of the defendants' wrongful conduct”), aff’d, 286 F.3d 257 (5th Cir. 2002).

The court should take care not to suggest that the jury could award damages based on “the abstract value of [the] constitutional right.” Stachura, 477 U.S. at 308. If a constitutional violation has not caused actual damages, nominal damages are the appropriate remedy. See id. at 308 n.11; infra Instruction 4.8.2. However, “compensatory damages may be awarded once the plaintiff shows actual injury despite the fact the monetary value of the injury is difficult to ascertain.” Brooks v. Andolina, 826 F.2d 1266, 1269 (3d Cir. 1987).

In a few types of cases, “presumed” damages may be available. “When a plaintiff seeks compensation for an injury that is likely to have occurred but difficult to establish... presumed damages may roughly approximate the harm that the plaintiff suffered and thereby compensate for harms that may be impossible to measure.” Stachura, 477 U.S. at 310-11. However, only a “narrow” range of claims will qualify for presumed damages. Spence v. Board of Educ. of Christina School Dist., 806 F.2d 1198, 1200 (3d Cir. 1986) (noting that “[t]he situations alluded to by the Memphis Court that would justify presumed damages [involved] defamation and the deprivation of the right to vote”).

If warranted by the evidence, the court can instruct the jury to distinguish between damages caused by legal conduct and damages caused by illegal conduct. Cf. Bennis v. Gable, 823 F.2d 723, 734 n.14 (3d Cir. 1987) (“Apportionment [of compensatory damages] is appropriate whenever ‘a factual basis can be found for some rough practical apportionment, which limits a defendant's liability to that part of the harm which that defendant's conduct has been cause in fact.’”) (quoting Prosser & Keeton, The Law of Torts, § 52, at 345 (5th ed. 1984)); Eazor Express, Inc. v. International Brotherhood of Teamsters, 520 F.2d 951, 967 (3d Cir.1975) (reviewing judgment entered after bench trial in case under Labor Management Relations Act and discussing apportionment of damages between legal and illegal conduct), overruled on other grounds by Carbon Fuel Co. v. United Mine Workers of America, 444 U.S. 212, 215 (1979).

The court should instruct the jury on the categories of compensatory damages that it should consider. Those categories will often parallel the categories of damages available under tort law. “[O]ver the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well.” Carey v. Piphus, 435 U.S. 247, 257 258 (1978).123 The Carey Court also noted, however, that “the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question.” Id. at 259.

The Prison Litigation Reform Act (“PLRA”) provides that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). This provision “requir[es] a less than significant but more than de minimis physical injury as a predicate to allegations of emotional injury.” Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003). However, this provision does not bar the award of nominal and punitive damages. See Allah v. Al Hafeez, 226 F.3d 247, 252 (3d Cir. 2000) (holding that “[n]either claims seeking nominal damages to vindicate constitutional rights nor claims seeking punitive damages to deter or punish egregious violations of constitutional rights are claims ‘for mental or emotional injury’” within the meaning of Section 1997e(e)).124 At least one district court has interpreted Section 1997e(e) to preclude the award of damages for emotional injury absent a finding of physical injury. See Tate v. Dragovich, 2003 WL 21978141, at *9 (E.D. Pa. 2003) (“Plaintiff was barred from recovering compensatory damages for his alleged emotional and psychological injuries by § 803(d)(e) of the PLRA, which requires that proof of physical injury precede any consideration of mental or emotional harm, 42 U.S.C. § 1997e(e) (2003), and the jury was instructed as such.”). In a case within Section 1997e(e)’s ambit,125 the court should incorporate this consideration into the instructions.126

The Third Circuit has held that the district court has discretion to award prejudgment interest in Section 1983 cases. See Savarese v. Agriss, 883 F.2d 1194, 1207 (3d Cir. 1989). Accordingly, it appears that the question of prejudgment interest need not be submitted to the jury. Compare Cordero v. De Jesus Mendez, 922 F.2d 11, 13 (1st Cir. 1990) (“[I]n an action brought under 42 U.S.C. § 1983, the issue of prejudgment interest is so closely allied with the issue of damages that federal law dictates that the jury should decide whether to assess it.”).

There appears to be no uniform practice regarding the use of an instruction that warns the jury against speculation on attorney fees and costs. In Collins v. Alco Parking Corp., 448 F.3d 652 (3d Cir. 2006), the district court gave the following instruction: “You are instructed that if plaintiff wins on his claim, he may be entitled to an award of attorney fees and costs over and above what you award as damages. It is my duty to decide whether to award attorney fees and costs, and if so, how much. Therefore, attorney fees and costs should play no part in your calculation of any damages.” Id. at 656-57. The Court of Appeals held that the plaintiff had not properly objected to the instruction, and, reviewing for plain error, found none: “We need not and do not decide now whether a district court commits error by informing a jury about the availability of attorney fees in an ADEA case. Assuming arguendo that an error occurred, such error is not plain, for two reasons.” Id. at 657. First, “it is not ‘obvious’ or ‘plain’ that an instruction directing the jury not to consider attorney fees” is irrelevant or prejudicial; “it is at least arguable that a jury tasked with computing damages might, absent information that the Court has discretion to award attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense of litigation.” Id. Second, it is implausible “that the jury, in order to eliminate the chance that Collins might be awarded attorney fees, took the disproportionate step of returning a verdict against him even though it believed he was the victim of age discrimination, notwithstanding the District Court's clear instructions to the contrary.” Id.; see also id. at 658 (distinguishing Fisher v. City of Memphis, 234 F.3d 312, 319 (6th Cir. 2000), and Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir. 1991)).


(Last Updated July 2019)

Footnotes

118 “[E]xpert medical evidence is not required to prove emotional distress in section 1983 cases.” Bolden v. Southeastern Pennsylvania Transp. Authority, 21 F.3d 29, 36 (3d Cir. 1994). However, the plaintiff must present competent evidence showing emotional distress. See Chainey v. Street, 523 F.3d 200, 216 (3d Cir. 2008). And in suits filed by prisoners, the court should ensure that the instructions on emotional and mental injury comply with 42 U.S.C. § 1997e(e). See Comment.
119 The Court of Appeals has not discussed whether and how the jury should be instructed concerning the present value of future damages in Section 1983 cases. For instructions concerning present value (and a discussion of relevant issues), see Instruction 5.4.4 and its Comment.
120 This category of damages is not available for an unreasonable search and seizure. See Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2000), as amended (Jan. 26, 2001) (“Victims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy – including (where appropriate) damages for physical injury, property damage, injury to reputation, etc.; but such victims cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution.”) (quoting Townes v. City of New York, 176 F.3d 138, 148 (2d Cir.1999)).
121 See Sample v. Diecks, 885 F.2d 1099, 1112 (3d Cir. 1989) (upholding award of compensatory damages for “each day of confinement after the time Sample would have been released if Diecks had fulfilled his duty to Sample”).
122 The Third Circuit has noted the potential relevance of 42 U.S.C. § 1988 to the question of damages in Section 1983 cases. See Fontroy v. Owens, 150 F.3d 239, 242 (3d Cir. 1998). The Fontroy court relied on the approach set forth by the Supreme Court in a case addressing statute of limitations issues:
First, courts are to look to the laws of the United States "so far as such laws are suitable to carry [the civil and criminal civil rights statutes] into effect." If no suitable federal rule exists, courts undertake the second step by considering application of state "common law, as modified and changed by the constitution and statutes" of the forum State. A third step asserts the predominance of the federal interest: courts are to apply state law only if it is not "inconsistent with the Constitution and laws of the United States." Fontroy, 150 F.3d at 242-43 (quoting Burnett v. Grattan, 468 U.S. 42, 47-48 (1984) (quoting 42 U.S.C. § 1988(a))); compare Seth F. Kreimer, The Source of Law in Civil Rights Actions: Some Old Light on Section 1988, 133 U. Pa. L. Rev. 601, 620 (1985) (arguing that Section 1988's reference to “common law” denotes “general common law,” not state common law).

As noted in the text, the Supreme Court has addressed a number of questions relating to the damages available in Section 1983 actions without making Section 1988 the focus of its analysis. See, e.g., Carey v. Piphus, 435 U.S. 247, 258 n.13 (1978) (applying the tort principle of compensation in a procedural due process case and stating in passing, in a footnote, that “42 U.S.C. § 1988 authorizes courts to look to the common law of the States where this is ‘necessary to furnish suitable remedies’ under § 1983”).

123 Compensatory damages in a Section 1983 case “may include not only out of pocket loss and other monetary harms, but also such injuries as ‘impairment of reputation ..., personal humiliation, and mental anguish and suffering.’” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 307 (1986) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974)); see also Coleman v. Kaye, 87 F.3d 1491, 1507 (3d Cir. 1996) (in sex discrimination case, holding that plaintiff could recover damages under Section 1983 for “personal anguish she suffered as a result of being passed over for promotion”); Chainey v. Street, 523 F.3d 200, 216 (3d Cir. 2008) (discussing proof of damages for emotional distress).
124 One court has held that Section 1997e’s reference to “mental or emotional injury” does not encompass physical pain. See Perez v. Jackson, 2000 WL 893445, at *2 (E.D.Pa. June 30, 2000) (“Physical pain wantonly inflicted in a manner which violates the Eighth Amendment is a sufficient ‘physical injury’ to permit recovery under § 1983. Plaintiff also has not pled a claim for emotional or mental injury.”).
125 “[T]he applicability of the personal injury requirement of 42 U.S.C. § 1997e(e) turns on the plaintiff's status as a prisoner, not at the time of the incident, but when the lawsuit is filed.” Abdul Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001) (en banc).
126 It is not entirely clear that Section 1997e(e) precludes an award of damages for emotional injury absent a jury finding of physical injury; rather, the statute focuses upon the pretrial stage, by precluding the prisoner from bringing an action seeking damages for emotional injury absent a prior showing of physical injury. A narrow reading of the statute’s language arguably accords with the statutory purpose of decreasing the number of inmate suits and enabling the pretrial dismissal of such suits where only emotional injury is alleged: Under this view, if a plaintiff has survived summary judgment by pointing to evidence that would enable a reasonable jury to find physical injury, it would not offend the statute’s purpose to permit the jury to award damages for emotional distress even if the jury did not find physical injury. However, because it is far from clear that this view will ultimately prevail, the safer course may be to incorporate the physical injury requirement into the jury instructions.

4 PJI 8.2 | SECTION 1983 - NOMINAL DAMAGES

If you return a verdict for [plaintiff], but [plaintiff] has failed to prove compensatory damages, then you must award nominal damages of $ 1.00. A person whose federal rights were violated is entitled to a recognition of that violation, even if [he/she] suffered no actual injury. Nominal damages (of $1.00) are designed to acknowledge the deprivation of a federal right, even where no actual injury occurred. However, if you find actual injury, you must award compensatory damages (as I instructed you), rather than nominal damages.
COMMENT The Supreme Court has explained that “[b]y making the deprivation of... rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed.” Carey v. Piphus, 435 U.S. 247, 266 (1978). Carey involved a procedural due process claim, but the Court indicated that the rationale for nominal damages extended to other types of Section 1983 claims as well:

The Court observed, with apparent approval, that “[a] number of lower federal courts have approved the award of nominal damages under § 1983 where deprivations of constitutional rights are not shown to have caused actual injury.” See id. n.24 (citing cases involving Section 1983 claims for various constitutional violations); see also Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308 n.11 (1986) (explaining that “nominal damages... are the appropriate means of ‘vindicating’ rights whose deprivation has not caused actual, provable injury”); Allah v. Al Hafeez, 226 F.3d 247, 252 (3d Cir. 2000) (noting “the Supreme Court's clear directive that nominal damages are available for the vindication of a constitutional right absent any proof of actual injury”); Atkinson v. Taylor, 316 F.3d 257, 265 n.6 (3d Cir. 2003) (“[E]ven if appellee is unable to establish a right to compensatory damages, he may be entitled to nominal damages.”); B.S. v. Somerset County, 704 F.3d 250, 273 (3d Cir. 2013) (“If nothing else, the violations of Mother’s right to procedural due process would be a basis for awarding nominal damages.”).

An instruction on nominal damages is proper when the plaintiff has failed to present evidence of actual injury. However, when the plaintiff has presented evidence of actual injury and that evidence is undisputed,127 it is error to instruct the jury on nominal damages, at least if the nominal damages instruction is emphasized to the exclusion of appropriate instructions on compensatory damages.128 In Pryer v. C.O. 3 Slavic, the district court granted a new trial, based partly on the ground that because the plaintiff had presented “undisputed proof of actual injury, an instruction on nominal damages was inappropriate.” Pryer v. C.O. 3 Slavic, 251 F.3d 448, 452 (3d Cir. 2001). In upholding the grant of a new trial, the Court of Appeals noted that “nominal damages may only be awarded in the absence of proof of actual injury.” See id. at 453. The court observed that the district court had “recognized that he had erroneously instructed the jury on nominal damages and failed to inform it of the availability of compensatory damages for pain and suffering.” Id. Accordingly, the court held that “[t]he court's error in failing to instruct as to the availability of damages for such intangible harms, coupled with its emphasis on nominal damages, rendered the totality of the instructions confusing and misleading.” Id. at 454.

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Footnotes

127 Cf. Slicker v. Jackson, 215 F.3d 1225, 1232 (11th Cir. 2000) (“[N]ominal damages may be appropriate where a jury reasonably concludes that the plaintiff's evidence of injury is not credible.”).
128 Cf. Brooks v. Andolina, 826 F.2d 1266, 1269-70 (3d Cir. 1987) (in case tried without a jury, holding that it was error to award only nominal damages because the plaintiff “demonstrated that he suffered actual injury” by testifying “that while in punitive segregation he lost his regular visiting and phone call privileges, his rights to recreation and to use the law library, and his wages from his job”).

4 PJI 8.3 | SECTION 1983 - PUNITIVE DAMAGES

129In addition to compensatory or nominal damages, you may consider awarding [plaintiff] punitive damages. A jury may award punitive damages to punish a defendant, or to deter the defendant and others like the defendant from committing such conduct in the future. [Where appropriate, the jury may award punitive damages even if the plaintiff suffered no actual injury and so receives nominal rather than compensatory damages.]

You may only award punitive damages if you find that [defendant] [a particular defendant] acted maliciously or wantonly in violating [plaintiff’s] federally protected rights. [In this case there are multiple defendants. You must make a separate determination whether each defendant acted maliciously or wantonly.]

• A violation is malicious if it was prompted by ill will or spite towards the plaintiff. A defendant is malicious when [he/she] consciously desires to violate federal rights of which [he/she] is aware, or when [he/she] consciously desires to injure the plaintiff in a manner [he/she] knows to be unlawful. A conscious desire to perform the physical acts that caused plaintiff's injury, or to fail to undertake certain acts, does not by itself establish that a defendant had a conscious desire to violate rights or injure plaintiff unlawfully.

• A violation is wanton if the person committing the violation recklessly or callously disregarded the plaintiff’s rights.


If you find that it is more likely than not130 that [defendant] [a particular defendant] acted maliciously or wantonly in violating [plaintiff’s] federal rights, then you may award punitive damages [against that defendant].131 However, an award of punitive damages is discretionary; that is, if you find that the legal requirements for punitive damages are satisfied, then you may decide to award punitive damages, or you may decide not to award them. I will now discuss some considerations that should guide your exercise of this discretion. But remember that you cannot award punitive damages unless you have found that [defendant] [the defendant in question] acted maliciously or wantonly in violating [plaintiff’s] federal rights.

If you have found that [defendant] [the defendant in question] acted maliciously or wantonly in violating [plaintiff’s] federal rights, then you should consider the purposes of punitive damages. The purposes of punitive damages are to punish a defendant for a malicious or wanton violation of the plaintiff’s federal rights, or to deter the defendant and others like the defendant from doing similar things in the future, or both. Thus, you may consider whether to award punitive damages to punish [defendant]. You should also consider whether actual damages standing alone are sufficient to deter or prevent [defendant] from again performing any wrongful acts [he/she] may have performed. Finally, you should consider whether an award of punitive damages in this case is likely to deter other persons from performing wrongful acts similar to those [defendant] may have committed.

If you decide to award punitive damages, then you should also consider the purposes of punitive damages in deciding the amount of punitive damages to award. That is, in deciding the amount of punitive damages, you should consider the degree to which [defendant] should be punished for [his/her] wrongful conduct toward [plaintiff], and the degree to which an award of one sum or another will deter [defendant] or others from committing similar wrongful acts in the future.

In considering the purposes of punishment and deterrence, you should consider the nature of the defendant’s action. For example, you are entitled to consider [include any of the following that are warranted by the evidence] [whether a defendant’s act was violent or non-violent; whether the defendant’s act posed a risk to health or safety; whether the defendant acted in a deliberately deceptive manner; and whether the defendant engaged in repeated misconduct, or a single act.] You should also consider the amount of harm actually caused by the defendant’s act, [as well as the harm the defendant’s act could have caused]132 and the harm that could result if such acts are not deterred in the future.

[Bear in mind that when considering whether to use punitive damages to punish [defendant], you should only punish [defendant] for harming [plaintiff], and not for harming people other than [plaintiff]. As I have mentioned, in considering whether to punish [defendant], you should consider the nature of [defendant]’s conduct – in other words, how blameworthy that conduct was. In some cases, evidence that a defendant’s conduct harmed other people in addition to the plaintiff can help to show that the defendant’s conduct posed a substantial risk of harm to the general public, and so was particularly blameworthy. But if you consider evidence of harm [defendant] caused to people other than [plaintiff], you must make sure to use that evidence only to help you decide how blameworthy the defendant’s conduct toward [plaintiff] was. Do not punish [defendant] for harming people other than [plaintiff].]133

[The extent to which a particular amount of money will adequately punish a defendant, and the extent to which a particular amount will adequately deter or prevent future misconduct, may depend upon the defendant’s financial resources. Therefore, if you find that punitive damages should be awarded against [defendant], you may consider the financial resources of [defendant] in fixing the amount of such damages.]

COMMENT Punitive damages are not available against municipalities. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).

“The purpose of punitive damages is to punish the defendant for his willful or malicious conduct and to deter others from similar behavior.” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 306 n.9 (1986). “A jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983).134 “While the Smith Court determined that it was unnecessary to show actual malice to qualify for a punitive award... , its intent standard, at a minimum, required recklessness in its subjective form. The Court referred to a ‘subjective consciousness’ of a risk of injury or illegality and a ‘“criminal indifference to civil obligations.”’” Kolstad v. American Dental Ass'n, 527 U.S. 526, 536 (1999) (discussing Smith in the context of a Title VII case).135

The Supreme Court has imposed some due process limits on both the size of punitive damages awards and the process by which those awards are determined and reviewed.136 In performing the substantive due process review of the size of punitive awards, a court must consider three factors: “the degree of reprehensibility of” the defendant’s conduct; “the disparity between the harm or potential harm suffered by” the plaintiff and the punitive award; and the difference between the punitive award “and the civil penalties authorized or imposed in comparable cases.” BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996). The Supreme Court’s due process precedents have a dual relevance in Section 1983 cases. First, those precedents presumably govern a court’s review of punitive damages awards in Section 1983 cases; there is no reason to think that a different constitutional standard applies to Section 1983 cases137 (though the Gore factors may well apply differently in such cases than they do in cases under state tort law). Second, the concerns elaborated by the Court in the due process cases may also provide some guidance concerning the Court’s likely views on the substantive standards that should guide juries in Section 1983 cases. Though the Court has not held that juries hearing state-law tort claims must be instructed to consider the Gore factors, it is possible that the Court might in the future approve the use of analogous considerations in instructing juries in Section 1983 cases.

The Court’s due process decisions, of course, concern the outer limits placed on punitive awards by the Constitution. It is also possible that the Court may in future cases develop subconstitutional principles of federal law that further constrain punitive awards in Section 1983 cases. An example of the application of such principles in a different area of substantive federal law is provided by Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008). In Exxon, the plaintiffs sought compensatory and punitive damages from Exxon Mobil Corp. and its subsidiary arising from the Exxon Valdez oil spill. The jury awarded $ 5 billion in punitive damages against Exxon. See id. at 2614. The court of appeals remitted the punitive award to $ 2.5 billion. See id. A divided Supreme Court ordered a further reduction of the punitive award to $ 507.5 million on the ground that under the circumstances the appropriate ratio of punitives to compensatories was 1:1. See id. at 2634. The Exxon Court applied this ratio as a matter of federal “maritime common law,” see id. at 2626, but the Court’s concern with the predictability and consistency of punitive awards, see id. at 2627, may apply to Section 1983 cases as well.

However, the particular ratio chosen by the Exxon Court is unlikely to constrain all such awards in Section 1983 cases. The Exxon Court stressed that based on the jury’s findings the conduct in the Exxon case involved “no earmarks of exceptional blameworthiness” such as “intentional or malicious conduct” or “behavior driven primarily by desire for gain,” and that the case was not one in which the compensatory damage award was small or in which the defendant’s conduct was unlikely to be detected. Id. at 2633. The Exxon Court likewise noted that some areas of law were distinguishable from the Exxon case in that those areas implicated a regulatory goal of “induc[ing] private litigation to supplement official enforcement that might fall short if unaided.” See id. at 2622. These observations suggest why the Exxon Court’s 1:1 ratio may well not translate to the context of a Section 1983 claim. Moreover, the Exxon Court did not state that a ratio such as the one it applied in the Exxon case should be included in jury instructions rather than simply being applied by the judge during review of the jury award.138 However, given the possibility that courts may in the future apply analogous principles in the Section 1983 context, counsel may wish to seek the submission to the jury of interrogatories that elicit the jury’s view on relevant factual matters such as whether the conduct qualifying for the punitive award was merely reckless or whether it involved some greater degree of culpability.

The Court’s due process precedents indicate a concern that vague jury instructions may increase the risk of arbitrary punitive damages awards. See State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003) (“Vague instructions, or those that merely inform the jury to avoid ‘passion or prejudice,’... do little to aid the decisionmaker in its task of assigning appropriate weight to evidence that is relevant and evidence that is tangential or only inflammatory”). However, as noted above, the Court has not held that due process requires jury instructions to reflect Gore’s three-factor approach.139 To the contrary, the Court has upheld against a due process challenge an award rendered by a jury that had received instructions that were much less specific. See Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 6 n.1 (1991) (quoting jury instruction); id. at 43 (O’Connor, J., dissenting) (arguing that “the trial court's instructions in this case provided no meaningful standards to guide the jury's decision to impose punitive damages or to fix the amount”). It is not clear that it would be either feasible or advisable to import all three Gore factors into jury instructions on punitive damages in Section 1983 cases.

The first factor – the reprehensibility of the defendant’s conduct – may appropriately be included in the instruction. The model instruction lists that consideration among the factors that the jury may consider in determining whether to award punitive damages and in determining the size of such damages. In assessing reprehensibility, a jury can take into account, for instance, whether an offense was violent or nonviolent; whether the offense posed a risk to health or safety; or whether a defendant was deceptive. See Gore, 517 U.S. at 576.140 The jury can also take into account that “repeated misconduct is more reprehensible than an individual instance of malfeasance.” Id. at 577.141 Where supported by the facts, the jury may also consider a plaintiff’s improper conduct as mitigating the need for a high punitive damages award. Brand Marketing Group v. Interteck Testing, 801 F.3d 347, 363 (3d Cir. 2015).

In considering reprehensibility, the jury can also be instructed to consider the harm actually caused by the defendant’s act, as well as the harm the defendant’s act could have caused and the harm that could result if such acts are not deterred in the future.142 However, the Court’s decision in Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007), underscores the need for caution with respect to such an instruction in a case where the jury might consider harm to people other than the plaintiff. If a jury bases a punitive damages award “in part upon its desire to punish the defendant for harming persons who are not before the court (e.g., victims whom the parties do not represent),” that award “amount[s] to a taking of ‘property’ from the defendant without due process.” Philip Morris, 127 S. Ct. at 1060. The Court reasoned that permitting a jury to punish the defendant for harm caused to non-plaintiffs would deprive the defendant of the chance to defend itself and would invite standardless speculation by the jury:
[A] defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge, by showing, for example in a case such as this, that the other victim was not entitled to damages because he or she knew that smoking was dangerous or did not rely upon the defendant's statements to the contrary. For another [thing], to permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur? The trial will not likely answer such questions as to nonparty victims. The jury will be left to speculate. And the fundamental due process concerns to which our punitive damages cases refer – risks of arbitrariness, uncertainty and lack of notice – will be magnified. Philip Morris, 127 S. Ct. at 1063.

However, the Philip Morris Court conceded that “harm to other victims... is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility”:

In other words, “[e]vidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible – although counsel may argue in a particular case that conduct resulting in no harm to others nonetheless posed a grave risk to the public, or the converse.” Id. at 1064. But the Court stressed that “a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.” Id. States143 must ensure “that juries are not asking the wrong question, i.e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers.” Id. “[W]here the risk of that misunderstanding is a significant one – because, for instance, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jury – a court, upon request, must protect against that risk.” Id. at 1065.

Accordingly, where evidence or counsel’s argument to the jury indicates that the defendant’s conduct harmed people other than the plaintiff, Philip Morris requires the court – upon request – to ensure that the jury is not confused as to the use it can make of this information in assessing punitive damages. The Philip Morris Court did not specify how the trial court should prevent jury confusion on this issue. The penultimate paragraph in Instruction 4.8.3 attempts to explain the distinction between permissible and impermissible uses of information relating to harm to third parties. This paragraph is bracketed to indicate that it should be given only when necessitated by the evidence or argument presented to the jury.

The model does not state that reprehensibility is a prerequisite to the award of punitive damages,144 because precedent in civil rights cases indicates that the jury can award punitive damages if it finds the defendant maliciously or wantonly violated the plaintiff’s rights, without separately finding that the defendant’s conduct was egregious. In Kolstad, the Supreme Court interpreted a statutory requirement that the jury must find the defendant acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual” in order to award punitive damages under Title VII. See Kolstad, 527 U.S. at 534 (quoting 42 U.S.C. § 1981a(b)(1)). Reasoning that “[t]he terms ‘malice’ and ‘reckless’ ultimately focus on the actor's state of mind,” the Court rejected the view “that eligibility for punitive damages can only be described in terms of an employer's ‘egregious’ misconduct.” Kolstad, 527 U.S. at 534-35. Since the Kolstad Court drew on the Smith v. Wade standard in delineating the punitive damages standard under Title VII, Kolstad’s reasoning seems equally applicable to the standard for punitive damages under Section 1983. The Third Circuit has applied Kolstad’s definition of recklessness to a Section 1983 case, albeit in a non-precedential opinion. See Whittaker v. Fayette County, 65 Fed. Appx. 387, 393 (3d Cir. April 9, 2003) (non-precedential opinion); see also Schall v. Vazquez, 322 F. Supp. 2d 594, 602 (E.D. Pa. 2004) (in a Section 1983 case, applying Kolstad’s holding “that a defendant's state of mind and not the egregious conduct is determinative in awarding punitive damages”).

It is far less clear that the jury should be instructed to consider the second Gore factor (the ratio of actual to punitive damages).145 Though the Court has “decline[d] to impose a bright line ratio which a punitive damages award cannot exceed,” it has stated that “in practice, few awards exceeding a single digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” State Farm, 538 U.S. at 425. However, the analysis is complicated by the possibility that the permissible ratio will vary inversely to the size of the compensatory damages award.146 See id. (stating that “ratios greater than those we have previously upheld may comport with due process” where an especially reprehensible act causes only small damages, and that conversely, “[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee”).147 Instructing a jury that its punitive damages award must not exceed some multiple of its compensatory damages award might have undesirable effects. Though such a directive might constrain some punitive damages awards, in other cases (where a jury would otherwise be inclined to award only a small amount of punitive damages) calling the jury’s attention to a multiple of the compensatory award might anchor the jury’s deliberations at a higher figure. In addition, it is possible that a jury that wished to award a particular total sum to a plaintiff might redistribute its award between compensatory and punitive damages in order to comply with the stated ratio.

Due to the complexities and potential downsides of a proportionality instruction, the Committee has not included proportionality language in the model instruction. However, in a case in which the compensatory damages will be substantial (such as a wrongful death case), it may be useful to instruct the jury to consider the relationship between the amount of any punitive award and the amount of harm the defendant caused to the plaintiff.148 In such a case, instructing the jury to consider that relationship would not unduly confine a punitive award but could help to ensure that any such award is not unconstitutionally excessive.

The Court’s due process cases also raise some question about the implications of evidence concerning a defendant’s financial resources. The Court has stated that such evidence will not loosen the limits imposed by due process on the size of a punitive award. See State Farm, 538 U.S. at 427 (“The wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award.”).149 Elsewhere, the Court has noted its concern that evidence of wealth could trigger jury bias: “Jury instructions typically leave the jury with wide discretion in choosing amounts, and the presentation of evidence of a defendant's net worth creates the potential that juries will use their verdicts to express biases against big businesses, particularly those without strong local presences.” Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 432 (1994). Although those concerns may be salient in products liability cases brought against wealthy corporations, in Section 1983 cases, evidence of an individual defendant’s financial resources may be more likely to constrain than to inflate a punitive damages award. However, the possibility that a government employer might indemnify an individual defendant complicates the analysis.

“[E]vidence of a tortfeasor's wealth is traditionally admissible as a measure of the amount of punitive damages that should be awarded.” Fact Concerts, 453 U.S. at 270.150 If an individual defendant will not be indemnified for an award of punitive damages, it seems clear that evidence of the defendant’s financial resources is relevant and admissible on the question of punitive damages. See Fact Concerts, 453 U.S. at 269 (“By allowing juries and courts to assess punitive damages in appropriate circumstances against the offending official, based on his personal financial resources, [Section 1983] directly advances the public's interest in preventing repeated constitutional deprivations.”).

If the individual defendant will be indemnified, however, the relevance of the individual defendant’s limited financial resources becomes more complex. Arguably, there may be an even more pressing need to ensure that jury awards are not inflated. In a partial dissent in Keenan v. City of Philadelphia, 983 F.2d 459 (3d Cir. 1992), Judge Higginbotham argued that when an individual defendant will be indemnified by his or her government employer, the plaintiff should be required to submit evidence of the individual defendant’s net worth in order to obtain punitive damages. See id. at 484 (Higginbotham, J., dissenting in part). Judge Higginbotham asserted that without such evidence, a jury might be too inclined to award large punitive damages, to the detriment of innocent taxpayers. See id. at 477. Judge Higginbotham’s view, however, has not become circuit precedent. An earlier Third Circuit panel had stated that “evidence of [the defendant’s] financial status” is not “a prerequisite to the imposition of punitive damages.” Bennis v. Gable, 823 F.2d 723, 734 n.14 (3d Cir. 1987). Though Judge Higginbotham rejected Bennis’s statement as “dicta,” Keenan, 983 F.2d at 482 (Higginbotham, J., dissenting in part), Judge Becker disagreed, see id. at 472 n.12 (footnote by Becker, J.) (describing Bennis as “circuit precedent”), and a later district court opinion has taken the view that Judge Higginbotham’s approach is not binding, see Garner v. Meoli, 19 F. Supp. 2d 378, 392 (E.D. Pa. 1998) (rejecting “defendants argument, based on Judge Higginbotham's dissent in Keenan... , that a prerequisite to the awarding of punitive damages is evidence of defendants' net worth and that the burden for producing such evidence must be carried by plaintiffs”). Thus, it appears that under current Third Circuit law the plaintiff need not submit evidence of the defendant’s net worth in order to obtain punitive damages in a Section 1983 case.151 Accordingly, the last paragraph of the model is bracketed because it should be omitted in cases where no evidence is presented concerning the defendant’s finances.

The definition of “malicious” in Instruction 4.8.3 (with respect to punitive damages) differs from that provided in Instruction 4.10 (with respect to Eighth Amendment excessive force claims). If the jury finds that the defendant acted “maliciously and sadistically, for the purpose of causing harm” (such that the defendant violated the Eighth Amendment by employing excessive force), that finding should also establish that the defendant “acted maliciously or wantonly in violating the plaintiff’s federal rights,” so that the jury has discretion to award punitive damages. Thus, in an Eighth Amendment excessive force case involving only one claim and one defendant, the Committee suggests that the court substitute the following for the first three paragraphs of Instruction 4.8.3:
If you have found that [defendant] violated the Eighth Amendment by using force against [plaintiff] maliciously and sadistically, for the purpose of causing harm, then you may consider awarding punitive damages in addition to nominal or compensatory damages. A jury may award punitive damages to punish a defendant, or to deter the defendant and others like [him/her] from committing such conduct in the future. Where appropriate, the jury may award punitive damages even if the plaintiff suffered no actual injury. However, bear in mind that an award of punitive damages is discretionary; that is, you may decide to award punitive damages, or you may decide not to award them. However, in Eighth Amendment excessive force cases that also involve other types of claims (or that involve claims against other defendants, such as for failure to intervene), the court should not omit the first three paragraphs of Instruction 4.8.3. Rather, the court should modify the first bullet point in the second paragraph, so that it begins: “! For purposes of considering punitive damages, a violation is malicious if....”

(Last Updated July 2019)

Footnotes

129 See Comment for alternative language tailored to Eighth Amendment excessive force claims.
130 The Court of Appeals has not addressed the question of the appropriate standard of proof for punitive damages with respect to Section 1983 claims, but at least one district court in the Third Circuit has applied the preponderance standard. See Hopkins v. City of Wilmington, 615 F. Supp. 1455, 1465 (D. Del. 1985); cf., e.g., White v. Burlington Northern & Santa Fe R. Co., 364 F.3d 789, 805 (6th Cir. 2004) (en banc) (“[T]he appropriate burden of proof on a claim for punitive damages under Title VII is a preponderance of the evidence....”), aff’d, 126 S. Ct. 2405 (2006); compare Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23 n.11 (1991) (noting that “[t]here is much to be said in favor of a State's requiring... a standard of ‘clear and convincing evidence’ or, even, ‘beyond a reasonable doubt’” for punitive damages, but holding that “the lesser standard prevailing in Alabama – ‘reasonably satisfied from the evidence’ – when buttressed... by [other] procedural and substantive protections... is constitutionally sufficient”).
131 Use “a particular defendant” and “against that defendant” in cases involving multiple defendants.
132 This clause may be most appropriate for cases in which a dangerous act luckily turns out to cause less damage than would have been reasonably expected. See TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 459 (1993) (Stevens, J., joined by Rehnquist, C.J., and Blackmun, J.) (noting a state court’s description of an example in which a person shoots into a crowd but fortuitously injures no one).
133 Include this paragraph only when appropriate. See Comment for a discussion of Philip Morris USA v. Williams, 127 S.Ct. 1057 (2007).
134 See, e.g., Coleman v. Kaye, 87 F.3d 1491, 1509 (3d Cir. 1996) (in sex discrimination case, holding that “the jury's finding of two acts of intentional discrimination, after having been put on notice of a prior act of discrimination against the same plaintiff, evinces the requisite ‘reckless or callous indifference’ to [the plaintiff’s] federally protected rights”); Springer v. Henry, 435 F.3d 268, 281 (3d Cir. 2006) (“A jury may award punitive damages when it finds reckless, callous, intentional or malicious conduct.”).
135 See also Savarese v. Agriss, 883 F.2d 1194, 1204 (3d Cir. 1989) (“[F]or a plaintiff in a section 1983 case to qualify for a punitive award, the defendant's conduct must be, at a minimum, reckless or callous. Punitive damages might also be allowed if the conduct is intentional or motivated by evil motive, but the defendant's action need not necessarily meet this higher standard.”).
136 See Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001) (holding that “courts of appeals should apply a de novo standard of review when passing on district courts' determinations of the constitutionality of punitive damages awards”).
137 See Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2626 (2008) (“The Court’s response to outlier punitive damages awards has thus far been confined by [sic] claims at the constitutional level, and our cases have announced due process standards that every award must pass.”) (citing State Farm and Gore).
138 Admittedly, the Court explained that its use of a ratio was preferable to setting a numerical cap on punitive awards because the ratio “leave[s] the effects of inflation to the jury or judge who assesses the value of actual loss, by pegging punitive to compensatory damages using a ratio or maximum multiple.” Exxon, 128 S. Ct. at 2629. However, this statement need not be read to mean that the jury should be instructed to apply the relevant ratio; it can as easily be taken as an observation that by “pegging punitive to compensatory damages” the ratio will incorporate the jury’s stated view on the appropriate amount of compensatory damages.
139 To date, one of the few specific requirements imposed by the Court is that “[a] jury must be instructed... that it may not use evidence of out of state conduct to punish a defendant for action that was lawful in the jurisdiction where it occurred.” State Farm, 538 U.S. at 422. This requirement stems from the concern that a state should not impose punitive damages based on a defendant’s legal out-of-state conduct; that concern, of course, does not arise in the context of Section 1983 suits.

The Court’s decision in Philip Morris, 127 S. Ct. 1057 (2007) – which addresses the jury’s consideration of harm to third parties – is discussed below.

140 See also CGB Occupational Therapy, Inc. v. RHA Health Services, Inc., 499 F.3d 184, 190 (3d Cir. 2007) (“In evaluating the degree of Sunrise's reprehensibility in this case, we must consider whether:

‘[1] the harm caused was physical as opposed to economic;
[2] the tortious conduct evinced an indifference to or reckless disregard of the health or safety of others;
[3] the target of the conduct had financial vulnerability;
[4] the conduct involved repeated actions or was an isolated incident; and
[5] the harm was the result of intentional malice, trickery, or deceit, or mere accident.’”)


(quoting Campbell, 538 U.S. at 419); Cortez v. Trans Union, LLC, 617 F.3d 688, 718 n.37 (3d Cir. 2010) (in Fair Credit Reporting Act case, noting in dictum that there was “nothing wrong with a jury focusing on a ‘defendant's seeming insensitivity’ in deciding how much to award as punitive damages”).

141 In considering whether the defendant was a recidivist malefactor, the jury should consider only misconduct similar to that directed against the plaintiff. See State Farm, 538 U.S. at 424 (“[B]ecause the Campbells have shown no conduct by State Farm similar to that which harmed them, the conduct that harmed them is the only conduct relevant to the reprehensibility analysis.”); Brand Marketing Group v. Interteck Testing, 801 F.3d 347, 365 (3d Cir. 2015) (holding State Farm “does not prohibit the consideration of potential public harm in addition to the plaintiff’s injury. It prohibits only the consideration of conduct that is unrelated to the plaintiff’s case.”).
142 See TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 460 (1993) (Stevens, J., joined by Rehnquist, C.J., and Blackmun, J.) (“It is appropriate to consider the magnitude of the potential harm that the defendant's conduct would have caused to its intended victim if the wrongful plan had succeeded, as well as the possible harm to other victims that might have resulted if similar future behavior were not deterred.”) (emphasis in original).
143 Philip Morris concerned a state-law claim litigated in state court and thus the Court focused on the limits imposed by the Fourteenth Amendment’s Due Process Clause on state governments. Presumably, the Fifth Amendment’s Due Process Clause imposes a similar constraint with respect to federal claims litigated in federal court.
144 Some sets of model instructions include a reference to “extraordinary misconduct” or equivalent terms. See Eighth Circuit (Civil) Instruction 4.53 (“extraordinary misconduct”); Sand Instruction 87 92 (“extreme or outrageous conduct”). One reason for the inclusion of this language may be that the instruction approved in Smith v. Wade referred to “extraordinary misconduct.” Smith, 461 U.S. at 33.
145 It is also unclear how a court would instruct a jury on the third Gore factor in the context of a Section 1983 suit; the model instruction omits any reference to this factor.
146 Indeed, an inflexible ratio would conflict with the well-established principle that compensatory damages are not a prerequisite for the imposition of punitive damages in civil rights cases. See Allah v. Al Hafeez, 226 F.3d 247, 251 (3d Cir. 2000) ("Punitive damages may... be awarded based solely on a constitutional violation, provided the proper showing is made."); cf. Alexander v. Riga, 208 F.3d 419, 430 (3d Cir. 2000) (in suit under Fair Housing Act and Civil Rights Act of 1866, noting that "beyond a doubt, punitive damages can be awarded in a civil rights case where a jury finds a constitutional violation, even when the jury has not awarded compensatory or nominal damages."); see also Williams v. Kaufman County, 352 F.3d 994, 1016 (5th Cir. 2003) (“Because actions seeking vindication of constitutional rights are more likely to result only in nominal damages, strict proportionality would defeat the ability to award punitive damages at all.”).

The Court of Appeals has also suggested that the denominator used by a reviewing court might sometimes be larger than the amount of compensatory damages actually awarded by the jury. See CGB Occupational, 499 F.3d at 192 n.4 (citing with apparent approval a case in which the court “measur[ed] $150,000 punitive damages award against $135,000 award in attorney fees and costs, rather than against $2,000 compensatory award” and a case in which the court “consider[ed] expert testimony of potential loss to plaintiffs in the amount of $769,895, in addition to compensatory damages awarded for past harm, as part of ratio's denominator”).

147 See also Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2622 (2008) (noting that “heavier punitive awards have been thought to be justifiable... when the value of injury and the corresponding compensatory award are small (providing low incentives to sue)”).
148 A jury instructed to consider this ratio should be directed, for this purpose, to consider the harm the defendant caused the plaintiff, not harm caused to third parties. See Philip Morris, 127 S.Ct. at 1063 (describing the second Gore factor as “whether the award bears a reasonable relationship to the actual and potential harm caused by the defendant to the plaintiff”).
149 In the same discussion, however, the Court quoted with apparent approval Justice Breyer’s concurrence in Gore: “[Wealth] provides an open ended basis for inflating awards when the defendant is wealthy.... That does not make its use unlawful or inappropriate; it simply means that this factor cannot make up for the failure of other factors, such as 'reprehensibility,' to constrain significantly an award that purports to punish a defendant's conduct.” State Farm, 538 U.S. at 427 28 (quoting Gore, 517 U.S. at 591 (Breyer, J., joined by O’Connor & Souter, JJ., concurring)). Although the State Farm Court’s quotation of this passage suggests the Court did not consider wealth an impermissible factor in the award of punitive damages, Justice Ginsburg posited that the Court’s reasoning might “unsettle” that principle. See State Farm, 538 U.S. at 438 n.2 (Ginsburg, J., dissenting).

The Court of Appeals has considered the defendant’s wealth as a factor relevant to its due process analysis; the court noted that a rich defendant may be more difficult to deter and that in some cases a rich defendant may engage in litigation misconduct in order to wear down an impecunious plaintiff. See CGB Occupational, 499 F.3d at 194 (“What sets this case apart and makes it, we hope, truly unusual is the repeated use of procedural devices to grind an opponent down, without regard for whether those devices advanced any legitimate interest.”). The court suggested, however, that a jury might have more difficulty than judges would in assessing litigation misconduct and its possible relevance to a punitive damages analysis. See id. at 194 n.7.

150 See Cortez v. Trans Union, LLC, 617 F.3d 688, 718 n.37 (3d Cir. 2010) (in a Fair Credit Reporting Act case, stating in dictum that “[a] jury can consider the relative wealth of a defendant in deciding what amount is sufficient to inflict the intended punishment”).
151 One commentator has argued that if an indemnified defendant submits evidence of limited personal means, the plaintiff should be permitted to submit evidence that the defendant will be indemnified. See Martin A. Schwartz, Should Juries Be Informed that Municipality Will Indemnify Officer's § 1983 Liability for Constitutional Wrongdoing?, 86 IOWA L. REV. 1209, 1247 48 (2001) (“If a defendant introduces evidence of personal financial circumstances in order to persuade the jury to award low punitive damages, when in fact the defendant's punitive damages will be indemnified, failure to inform the jury about indemnification seriously misleads the jury.”). The Third Circuit has not addressed this question.

4 PJI 13 | SECTION 1983 - MALICIOUS PROSECUTION

[Plaintiff] claims that [defendant] violated [plaintiff’s] Fourth Amendment rights by initiating the prosecution of [plaintiff] for [describe crime[s]].

To establish this claim of malicious prosecution, [plaintiff] must prove the following [five] things by a preponderance of the evidence:

First: [Defendant] initiated the criminal proceeding against [plaintiff].

Second: [Defendant] lacked probable cause to initiate the proceeding.250

Third: The criminal proceeding ended in [plaintiff’s] favor.

Fourth: [Defendant] acted maliciously or for a purpose other than bringing [plaintiff] to justice.

Fifth: As a consequence of the proceeding, [plaintiff] suffered a significant deprivation of liberty.251


[In this case, the first, third and fifth of these issues are not in dispute: [Defendant] admits that [he/she] initiated the criminal proceeding; and I instruct you that the criminal proceeding ended in [plaintiff’s] favor and that [plaintiff] suffered a deprivation of liberty consistent with the concept of seizure.]252

As to the second element of [plaintiff’s] malicious prosecution claim, [plaintiff] must prove that [defendant] lacked probable cause to initiate the proceeding. To determine whether probable cause existed, you should consider whether the facts and circumstances available to [defendant] would warrant a prudent person in believing that [plaintiff] had committed the crime of [name the crime]. [Define the relevant crime under state law.]

[[Defendant] has pointed out that [plaintiff] was indicted by a grand jury. The indictment establishes that there was probable cause to initiate the proceeding unless [plaintiff] proves by a preponderance of the evidence that the indictment was obtained by fraud, perjury or other corrupt means.]

As to the fourth element of the malicious prosecution claim, [plaintiff] must prove that in initiating the proceeding, [defendant] acted out of spite, or that [defendant] did not [himself/herself] believe that the proceeding was proper, or that [defendant] initiated the proceeding for a purpose unrelated to bringing [plaintiff] to justice.

[Even if you find that [plaintiff] has proven the elements of [plaintiff’s] malicious prosecution claim, [defendant] asserts that [he/she] is not liable on this claim because [plaintiff] was in fact guilty of the offense with which [he/she] was charged. The fact that [plaintiff] was acquitted in the prior criminal case does not bar [defendant] from trying to prove that [plaintiff] was in fact guilty of the offense; a verdict of not guilty in a criminal case only establishes that the government failed to prove guilt beyond a reasonable doubt. If you find that [defendant] has proven by a preponderance of the evidence that [plaintiff] was actually guilty of the offense, then [defendant] is not liable on [plaintiff’s] malicious prosecution claim.]

COMMENT Third Circuit law concerning Section 1983 claims for malicious prosecution is not entirely clear. Prior to the Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994), the Court of Appeals held that the common law elements of malicious prosecution were both necessary and sufficient to state a Section 1983 claim. Post-Albright, those elements are not sufficient, but they are still necessary.

The pre-Albright test. Before 1994, plaintiffs in the Third Circuit could “bring malicious prosecution claims under § 1983 by alleging the common law elements of the tort.” Donahue v. Gavin, 280 F.3d 371, 379 (3d Cir. 2002) (citing Lee v. Mihalich, 847 F.2d 66, 69 70 (3d Cir. 1988)); see also Albright, 510 U.S. at 270 n.4 (plurality opinion) (stating that among the federal courts of appeals, “[t]he most expansive approach is exemplified by the Third Circuit, which holds that the elements of a malicious prosecution action under § 1983 are the same as the common law tort of malicious prosecution”). Typically, a plaintiff was required to prove “(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; and (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice.” Donahue, 280 F.3d at 379 (stating test determined by reference to Pennsylvania law); see also Lippay v. Christos, 996 F.2d 1490, 1503 (3d Cir. 1993) (discussing malice element with reference to Pennsylvania law); Rose v. Bartle, 871 F.2d 331, 349 (3d Cir. 1989). The Court of Appeals “assumed that by proving a violation of the common law tort, the plaintiff proved a violation of substantive due process that would support a § 1983 claim for malicious prosecution suit.” Donahue, 280 F.3d at 379.

Albright v. Oliver. In Albright, the plaintiff surrendered to authorities after a warrant was issued for his arrest; he was released on bail, and the charge was later dismissed because it failed to set forth a crime under state law. See Albright, 510 U.S. at 268 (plurality opinion). Albright sued under Section 1983, asserting a “substantive due process [right]... to be free from criminal prosecution except upon probable cause.” Id. at 269. A fractured Court affirmed the dismissal of Albright’s claim. Writing for a four-Justice plurality, Chief Justice Rehnquist explained that “it is the Fourth Amendment, and not substantive due process, under which petitioner Albright's claim must be judged.” Id. at 271. The plurality reasoned that in the field of criminal procedure, “[w]here a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims.’” Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).253 While conceding that not all the “required incidents of a fundamentally fair trial” flow from the Bill of Rights, the plurality argued that any such incidents not covered by a Bill of Rights provision would arise as a matter of procedural, not substantive, due process. See Albright, 510 U.S. at 273 n.6.

Justice Kennedy, joined by Justice Thomas, concurred in the judgment. He agreed that a claim for arrest without probable cause should be analyzed under the Fourth Amendment. However, Justice Kennedy noted that Albright’s claim focused on malicious prosecution, not unlawful arrest, and he argued that the Court should extend the rule of Parratt v. Taylor, 451 U.S. 527 (1981), to govern claims like Albright’s: Because the relevant state “provides a tort remedy for malicious prosecution,” Justice Kennedy asserted that Albright’s claim should not be cognizable under Section 1983. Albright, 510 U.S. at 285 (Kennedy, J., joined by Thomas, J., concurring in the judgment).

Justice Souter also concurred in the judgment. Though he did not believe that the existence of a relevant Bill of Rights provision necessarily precluded a due process claim, he argued that the Court should exercise “restraint” in recognizing such a due process right: It should not do so absent a substantial violation not redressable under a specific Bill of Rights provision. Albright, 510 U.S. at 286, 288-89 (Souter, J., concurring in the judgment).

Justice Stevens, joined by Justice Blackmun, dissented, arguing that “the initiation of a criminal prosecution... [is] a deprivation of liberty,” and that the process required prior to such a deprivation includes a justifiable finding of probable cause. See id. at 295-97, 300 (Stevens, J., joined by Blackmun, J., dissenting).

The Albright plurality explicitly left open the possibility that a Fourth Amendment violation could ground a malicious prosecution claim. See id. at 275 (“[W]e express no view as to whether petitioner's claim would succeed under the Fourth Amendment.”). Also, because Albright did not assert a procedural due process claim, see id. at 271, Albright appears to leave open the possibility that such a violation could provide the basis for a malicious prosecution claim.

Post-Albright cases.

In Manuel v. City of Joliet, Ill., 137 S. Ct. 911 (2017), the Court granted certiorari to decide “whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment.” The Court, however, decided only that “the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process,” id. at 920, and that “once a trial has occurred, the Fourth Amendment drops out,” so that a challenge to the sufficiency of the evidence to support a conviction and ensuing incarceration is brought under the Due Process Clause. Id. at 920 n.8. It left for the court of appeals on remand to decide the accrual date for such a Fourth Amendment claim, and whether malicious prosecution (with its favorable termination requirement) or false arrest is the better tort analogy. Id. at 920-22.

The Court of Appeals, while recognizing “that Albright commands that claims governed by explicit constitutional text may not be grounded in substantive due process,” has noted that malicious prosecution claims may be grounded in “police conduct that violates the Fourth Amendment, the procedural due process clause or other explicit text of the Constitution.” Torres v. McLaughlin, 163 F.3d 169, 172-73 (3d Cir. 1998).254 Instruction 4.13 is designed for use in cases where the plaintiff premises the malicious prosecution claim on a Fourth Amendment violation; adjustment would be necessary in cases premised on other constitutional violations.

Where the malicious prosecution claim sounds in the Fourth Amendment, the plaintiff “must show ‘some deprivation of liberty consistent with the concept of “seizure.”’” Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998) (quoting Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995)). In Gallo, the court found a seizure where the plaintiff “had to post a $10,000 bond, he had to attend all court hearings including his trial and arraignment, he was required to contact Pretrial Services on a weekly basis, and he was prohibited from traveling outside New Jersey and Pennsylvania.” Gallo, 161 F.3d at 222; compare DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) (acknowledging that “[p]retrial custody and some onerous types of pretrial, non custodial restrictions constitute a Fourth Amendment seizure,” but holding that plaintiffs’ “attendance at trial did not qualify as a Fourth Amendment seizure”)255 with Black v. Montgomery County, 835 F.3d 358, 367-68 (3d Cir. 2016) (holding that a criminal defendant who flew from her home in California to Pennsylvania for her arraignment, spent more than an hour being fingerprinted and photographed at a police station, was required to post unsecured bail of $50,000, travelled between California and Pennsylvania numerous times for pre-trial hearings, and would have forfeited her bond if she failed to appear, was seized). A prisoner who is already lawfully confined is not seized for Fourth Amendment purposes when he is charged with another crime. Curry v. Yachera, 835 F.3d 373, 380 (3d Cir. 2016). The plaintiff also must show that the seizure was unreasonable under the Fourth Amendment; in the malicious prosecution context, that requirement typically will be equivalent to the traditional common law element of lack of probable cause, discussed below.

The law has not developed uniformly, in recent years, on the applicability of the common law elements of malicious prosecution. Five months after Albright, in Heck v. Humphrey, the Court shaped the contours of a Section 1983 claim for unconstitutional conviction in part by reference to the common law tort’s requirement of favorable termination. See Heck v. Humphrey, 512 U.S. 477, 484 (1994). However, four Justices, concurring in the judgment, denied that the common law elements should apply to the constitutional tort. See id. at 494 (Souter, J., joined by Blackmun, Stevens, & O’Connor, JJ., concurring in the judgment) (arguing for example that a plaintiff – who had been convicted on the basis of a confession that had been coerced by police officers who had probable cause to believe the plaintiff was guilty – should not be barred from bringing a Section 1983 unconstitutional conviction claim for failure to show a lack of probable cause); cf. Hartman v. Moore, 126 S. Ct. 1695, 1702 (2006) (noting in a First Amendment retaliatory-prosecution case that “the common law is best understood here more as a source of inspired examples than of prefabricated components of Bivens torts”).

In a post-Heck case, the Court of Appeals rejected the contention that a Section 1983 claim alleging “unconstitutional conviction and imprisonment on murder charges” does not accrue until there is “a judicial finding of actual innocence”; the court relied partly on the rationale that Heck “should not be read to incorporate all of the common law of malicious prosecution into the federal law governing civil rights cases of this kind.” Smith v. Holtz, 87 F.3d 108, 110, 113-14 (3d Cir. 1996).256 Similarly, the Court of Appeals noted in Gallo that
by suggesting that malicious prosecution in and of itself is not a harm, Albright also suggests that a plaintiff would not need to prove all of the common law elements of the tort in order to recover in federal court. For instance, if the harm alleged is a seizure lacking probable cause, it is unclear why a plaintiff would have to show that the police acted with malice. Gallo, 161 F.3d at 222 n.6.

However, in other post-Albright cases the Court of Appeals has stated that Section 1983 plaintiffs must establish not only a specific constitutional violation but also the common-law elements for malicious prosecution:257
[A] plaintiff must show that: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Camiolo v. State Farm Fire & Cas. Co., 334 F.3d 345, 362-63 (3d Cir. 2003) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)); see also Zimmerman v. Corbett, 873 F.3d 414, 418 (3d Cir. 2017); DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005).

In 2009, the en banc Court of Appeals approved the approach that requires the plaintiff to establish the common law elements. See Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009). Thus, the discussion that follows considers each element in turn.

Initiation. Though post-Albright Third Circuit Court of Appeals cases have not focused on this element, it seems appropriate to require the plaintiff to establish that the defendant was involved in initiating the prosecution.

Where the relevant law enforcement policy is not to file charges unless the alleged crime victim so requests and not to drop those charges without the alleged victim’s permission, and where the alleged victim acted under color of state law, the alleged victim can be sued for malicious prosecution under Section 1983 if the requisite elements are present. See Merkle v. Upper Dublin School Dist., 211 F.3d 782, 791 (3d Cir. 2000) (holding that “the School Defendants, not just the Police Defendants, are responsible for Merkle's prosecution”); see also Gallo, 161 F.3d at 220 n.2 (“Decisions have ‘recognized that a § 1983 malicious prosecution claim might be maintained against one who furnished false information to, or concealed material information from, prosecuting authorities’” (quoting 1A Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation, § 3.20, at 316 (3d ed. 1997).).

Favorable termination. Post-Albright, the Court of Appeals has continued to require malicious prosecution plaintiffs to show favorable termination. See Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 2002) (citing Heck, 512 U.S. at 484 and noting that “Heck was decided [soon] after Albright”).

In Donahue the court held that entry of a nolle prosequi only counts as a favorable termination when the circumstances of the entry indicate the plaintiff’s innocence. See Donahue, 280 F.3d at 383 (citing Restatement (Second) of Torts §§ 659 & 660 (1976)); see also Geness v. Cox, 902 F.3d 344, 356 (3d Cir. 2018) (holding that to determine whether a nolle prosequi order indicates innocence requires consideration of the underlying facts and particular circumstances and that where prosecutor anticipated that it would not be possible to prove the case beyond a reasonable doubt, the order indicated innocence and constituted a favorable termination); Hilfirty v. Shipman, 91 F.3d 573, 575 (3d Cir. 1996) (“Because we find that Miller neither compromised with the prosecution to obtain her grant of nolle prosequi nor formally accepted the nolle prosequi in exchange for a release of future civil claims, we conclude that the underlying proceeding terminated in her favor.”). Resolution of a criminal case under Pennsylvania’s Accelerated Rehabilitation Disposition program “is not a favorable termination under Heck.” Gilles v. Davis, 427 F.3d 197, 211 (3d Cir. 2005).258

“[T]he favorable termination of some but not all individual charges does not necessarily establish the favorable termination of the criminal proceeding as a whole. Rather... , upon examination of the entire criminal proceeding, the judgment must indicate the plaintiff's innocence of the alleged misconduct underlying the offenses charged.” Kossler v. Crisanti, 564 F.3d 181, 188 (3d Cir. 2009) (en banc); see also id. at 189 (holding on the specific facts of the case that plaintiff’s “acquittal on the aggravated assault and public intoxication charges cannot be divorced from his simultaneous conviction for disorderly conduct when all three charges arose from the same course of conduct”). The Kossler majority stressed the fact intensive nature of this inquiry and left “for another day the establishment of universal contours of when a criminal proceeding which includes both an acquittal (or dismissal) and a conviction constitutes a termination in the plaintiff's favor.” Id. at 192. A Pennsylvania Superior Court order vacating a judgment of sentence without imposing any unfavorable conditions or burdens on the defendant constitutes a favorable termination. Bronowicz v. Allegheny County, 804 F.3d 338, 347-48 (3d Cir. 2015) (distinguishing Kossler and Gilles because, unlike in those cases, the Superior Court order did not imply that the sentence imposed was valid, and explaining that the requirement that the prior outcome indicate innocence does not call for magic words but rather directs the inquiry to the purpose of the favorable termination rule: avoiding conflicting resolutions in the criminal case and the § 1983 case).

Lack of probable cause. “Under § 1983, false arrest, false imprisonment, and malicious prosecution claims require a showing that the arrest, physical restraint, or prosecution was initiated without probable cause.” Pulice v. Enciso, 39 Fed. Appx. 692, 696 (3d Cir. July 17, 2002) (nonprecedential opinion); see also Wright v. City of Philadelphia, 409 F.3d 595, 604 (3d Cir. 2005) (“Wright bases her malicious prosecution claim on alleged Fourth Amendment violations arising from her arrest and prosecution. To prevail on this claim, she must show that the officers lacked probable cause to arrest her.”).

In some cases, a finding of probable cause for one among multiple charges will foreclose a malicious prosecution claim with respect to any of the charges. Thus, in Wright, the decision that there was probable cause to arrest the plaintiff for criminal trespass “dispose[d] of her malicious prosecution claims with respect to all of the charges brought against her, including the burglary.” Wright, 409 F.3d at 604. But Wright does not “‘insulate’ law enforcement officers from liability for malicious prosecution in all cases in which they had probable cause for the arrest of the plaintiff on any one charge.” Johnson v. Knorr, 477 F.3d 75, 83 (3d Cir. 2007). Otherwise, “an officer with probable cause as to a lesser offense could tack on more serious, unfounded charges which would support a high bail or a lengthy detention, knowing that the probable cause on the lesser offense would insulate him from liability for malicious prosecution on the other offenses.” Johnson, 477 F.3d at 84 (quoting Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.1991)). Under Johnson, the court must analyze probable cause with respect to each charge that was brought against the plaintiff. See id. at 85. Johnson distinguished Wright by scrutinizing the duration and nature of the defendants’ alleged conduct: In Wright, the defendants’ “involvement apparently ended at the time of the arrest,” whereas the plaintiff in Johnson alleged that the defendant’s involvement “lasted beyond the issuing of an affidavit of probable cause for his arrest and the arrest itself” and that the defendant “intentionally and fraudulently fabricated the charges against him,” leading to the prosecution. Johnson, 477 F.3d at 84. If a plaintiff establishes that the facts of the case warrant application of Johnson’s rule rather than Wright’s,259 it apparently is still open to the defendant to argue that “the prosecution for the additional charges for which there might not have been probable cause in no way resulted in additional restrictions on [the plaintiff’s] liberty beyond those attributable to the prosecution on the... charges for which there was probable cause.” Id. at 86.

The en banc Court of Appeals has “note[d] the considerable tension that exists between our treatment of the probable cause element in Johnson and our treatment of that element in the earlier case of Wright.” Kossler, 564 F.3d at 193. Though the Kossler court noted that if Wright and Johnson were “in unavoidable conflict” the earlier of the two precedents would control, Kossler, 564 F.3d at 194 n.8, the Kossler court did not conclude that such an unavoidable conflict exists. Rather, the Kossler court indicated that courts should, when necessary, “wrestle” with the question of which precedentWright or Johnson – governs in a given case, bearing in mind the “fact intensive” nature of the inquiry. Kossler, 564 F.3d at 194.

“[T]he question of probable cause in a section 1983 damage suit is one for the jury.” Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998) (discussing Section 1983 claim for malicious prosecution). In Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3d Cir. 1984), the Court of Appeals stated that “defendants bear the burden at trial of proving the defense of good faith and probable cause” with respect to a malicious prosecution claim. However, cases such as DiBella, Camiolo and Marasco (none of which cites Losch) list the absence of probable cause as an element of the malicious prosecution claim, and thus indicate that the plaintiff has the burden of proof on that element. See, e.g., Camiolo, 334 F.3d at 363 (holding that malicious prosecution claim was properly dismissed due to plaintiff’s inability to show lack of probable cause); Marasco, 318 F.3d at 522 (“Because initiation of the proceeding without probable cause is an essential element of a malicious prosecution claim, summary judgment in favor of the defendants was appropriate on this claim.”). More recently, the Court of Appeals has stated explicitly that the malicious prosecution plaintiff has the burden to show lack of probable cause. See Johnson, 477 F.3d at 86 (“[O]n the remand Johnson will have the burden to ‘show that the criminal action was begun without probable cause for charging the crime the first place.’ Hartman v. Moore... , 126 S. Ct. 1695, 1702 (2006).”). Accordingly, Instruction 4.13 assigns to the plaintiff the burden of proving the absence of probable cause. Compare Comment 4.12.2 (discussing burden of proof as to probable cause with respect to false arrest claims stemming from warrantless arrests).

“[A] grand jury indictment or presentment constitutes prima facie evidence of probable cause to prosecute, but... this prima facie evidence may be rebutted by evidence that the presentment was procured by fraud, perjury or other corrupt means.” Camiolo, 334 F.3d at 363 (quoting Rose, 871 F.2d at 353).260 In Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014), a case involving a claim that police officers fabricated evidence that led not only to indictment but conviction, the court of appeals held that a reasonable jury could find that there would have been no probable cause without the fabricated evidence. Compare Montgomery, 159 F.3d at 125 (holding “that the Restatement's rule that an overturned municipal conviction presumptively establish[es] probable cause contravenes the policies underlying the Civil Rights Act and therefore does not apply to a section 1983 malicious prosecution action”).

Where a claim exists against a complaining witness for that person’s role in the alleged malicious prosecution of the plaintiff, the factfinder should perform a separate probable cause inquiry concerning the complaining witness. See Merkle, 211 F.3d at 794 (“As instigators of the arrest... it is possible that the District and Brown were in possession of additional information, not provided to Detective Hahn, that would negate any probable cause they may otherwise have had to prosecute Merkle.”).

Malice or other improper purpose. It might be argued that a showing of malice should not be required where the plaintiff’s Section 1983 claim is premised on a Fourth Amendment violation. See Brooks v. City of Winston Salem, N.C., 85 F.3d 178, 184 n.5 (4th Cir. 1996) (noting that “the reasonableness of a seizure under the Fourth Amendment should be analyzed from an objective perspective” and thus that “the subjective state of mind of the defendant, whether good faith or ill will, is irrelevant in this context”). However, the Third Circuit Court of Appeals has listed malice as an element of Section 1983 malicious prosecution claims premised on Fourth Amendment violations. See Camiolo, 334 F.3d at 362-63; Marasco, 318 F.3d at 521.261

Pre-Albright caselaw defined the malice element “as either ill will in the sense of spite, lack of belief by the actor himself in the propriety of the prosecution, or its use for an extraneous improper purpose.” Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988). Following Pennsylvania law, the Court of Appeals held in another pre-Albright case that “[m]alice may be inferred from the absence of probable cause.” Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993); cf. Trabal v. Wells Fargo Armored Service Corp., 269 F.3d 243, 248 (3d Cir. 2001) (applying New Jersey law in a malicious prosecution case arising in diversity).

The Heck v. Humphrey bar. A convicted prisoner cannot proceed with a Section 1983 claim challenging the constitutionality of the conviction pursuant to which the plaintiff is in custody, unless the conviction has been reversed or otherwise invalidated.262 See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).263 Four Justices, concurring in the judgment, argued that this favorable-termination requirement should not apply to plaintiffs who are not in custody. See id. at 503 (Souter, J., joined by Blackmun, Stevens, & O’Connor, JJ., concurring in the judgment). The Heck majority rejected that argument, albeit in dicta. See id. at 490 n.10. Four years later, in Spencer v. Kemna, five Justices stated that Heck’s requirement of favorable termination does not apply when a plaintiff is out of custody.264 The Court of Appeals, however, has indicated that it is not at liberty to follow the suggestion made by those Justices.265

Plaintiff’s guilt as a defense. “Even if the plaintiff in malicious prosecution can show that the defendant acted maliciously and without probable cause in instituting a prosecution, it is always open to the defendant to escape liability by showing in the malicious prosecution suit itself that the plaintiff was in fact guilty of the offense with which he was charged.” Hector v. Watt, 235 F.3d 154, 156 (3d Cir. 2000), as amended (Jan. 26, 2001) (quoting W. Keeton et al., Prosser & Keeton on the Law of Torts 885 (5th ed. 1984) (citing Restatement (Second) of Torts § 657 (1977))). “This requirement can bar recovery even when the plaintiff was acquitted in the prior criminal proceedings, for a verdict of not guilty only establishes that there was not proof beyond a reasonable doubt.” Hector, 235 F.3d at 156. It appears that the defendant would have the burden of proof on this issue by a preponderance of the evidence. See Restatement (Second) of Torts § 657 cmt. b.266

Limits on types of damages. The plaintiff’s choice of constitutional violation upon which to ground the malicious prosecution claim may limit the types of damages available. In particular, “damages for post conviction injuries are not within the purview of the Fourth Amendment.” Donahue, 280 F.3d at 382. Thus, a plaintiff who premises a malicious prosecution claim on a seizure in violation of the Fourth Amendment must “distinguish between damages that may have been caused by that ‘seizure’” – which are recoverable on that claim – and “damages that are the result of his trial, conviction and sentence” – which are not. Id.; see also DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) (“[T]he Fourth Amendment does not extend beyond the period of pretrial restrictions.”).

Section 1983 claim for abuse of process. Prior to Albright, the Court of Appeals recognized a Section 1983 claim for abuse of process. “In contrast to a section 1983 claim for malicious prosecution, a section 1983 claim for malicious abuse of process lies where ‘prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law.’” Rose, 871 F.2d at 350 n.17 (quoting Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir.1977)). Favorable termination is not an element of a Section 1983 abuse of process claim. See Rose, 871 F.2d at 351. Nor is a lack of probable cause. See Jennings, 567 F.2d at 1219. “To prove abuse of process, plaintiffs must prove three elements: (1) an abuse or perversion of process already initiated (2) with some unlawful or ulterior purpose, and (3) harm to the plaintiffs as a result.” Godshalk v. Borough of Bangor, 2004 WL 999546, at *13 (E.D. Pa. May 5, 2004).

It seems clear that, post-Albright, the plaintiff must establish a constitutional violation (not sounding in substantive due process) in order to prevail on a Section 1983 claim for abuse of process. It may be possible for the plaintiff to satisfy this requirement by showing a violation of procedural due process. See Jennings, 567 F.2d at 1220 (“An abuse of process is by definition a denial of procedural due process.”);267 Godshalk, 2004 WL 999546, at *13 (accepting argument that abuse of process can constitute denial of procedural due process).

Section 1983 claim for conspiracy to prosecute maliciously. The Court of Appeals has recognized a Section 1983 claim for conspiracy to engage in a malicious prosecution. See Rose, 871 F.2d at 352 (reversing district court’s dismissal of malicious prosecution conspiracy claims).

Fourteenth Amendment stand-alone claim under section 1983 for fabrication of evidence. In Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014), the court of appeals held that even if a Fourth Amendment malicious prosecution claim were not viable, a Fourteenth Amendment stand-alone claim for fabrication of evidence would be. It rejected the argument that “evidence-fabrication claims must be tied to malicious prosecution cases,” concluding that “no sensible concept of ordered liberty is consistent with law enforcement cooking up its own evidence.” Id. at 293. It noted with approval an opinion of the Court of Appeals for the Fifth Circuit that characterized jury instructions as “deeply flawed” for limiting the jury’s use of fabricated evidence to evaluate a Fourth Amendment malicious prosecution claim without allowing a finding of a Fourteenth Amendment due process violation. Pursuant to Halsey, a court should not foreclose a Fourteenth Amendment stand-alone claim for fabrication of evidence even if a Fourth Amendment malicious prosecution claim fails (for example) because of the existence of probable cause even without the fabricated evidence. Such a claim is available even if the criminal defendant is acquitted, “if there is a reasonable likelihood that, absent the fabricated evidence, the defendant would not have been criminally charged.” Black v. Montgomery County, 835 F.3d 358, 370 (3d Cir. 2016).

(Last Updated July 2019)

Footnotes

250 See Comment for a discussion of the burden of proof with respect to this element.
251 If this element of the claim is disputed, the court may wish to give examples of deprivations of liberty that would rise to the level of a seizure. See Comment (discussing Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir. 1998), and DiBella v. Borough of Beachwood, 407 F.3d 599 (3d Cir. 2005)).
252 The defendant’s initiation of the proceeding will often be undisputed. If possible, the court should rule as a matter of law on the questions of favorable termination and of seizure
253 Justice Scalia concurred in the plurality opinion; as he explained, he both disagrees with the notion of substantive due process and takes the view that the Court’s precedents recognizing substantive due process rights do not extend to situations addressed by provisions in the Bill of Rights. See Albright, 510 U.S. at 275-76 (Scalia, J., concurring). Justice Ginsburg also concurred in the plurality opinion. See id. at 276 (Ginsburg, J., concurring).
254 A plaintiff can state a claim by alleging that the defendant initiated the malicious prosecution in retaliation for the plaintiff’s exercise of First Amendment rights. See Merkle v. Upper Dublin School Dist., 211 F.3d 782, 798 (3d Cir. 2000) (holding school district superintendent not entitled to qualified immunity on plaintiff’s claim “that [the superintendent], and through him the District, maliciously prosecuted Merkle in retaliation for her protected First Amendment activities”); see also Losch v. Borough of Parkesburg, 736 F.2d 903, 907-08 (3d Cir. 1984) (“[I]nstitution of criminal action to penalize the exercise of one's First Amendment rights is a deprivation cognizable under § 1983.”). In a First Amendment retaliatory-prosecution claim, the plaintiff must plead and prove lack of probable cause (among other elements). See Hartman v. Moore, 126 S. Ct. 1695, 1707 (2006).
255 “Although Fourth Amendment seizure principles may in some circumstances have implications in the period between arrest and trial, . . . posttrial incarceration does not qualify as a Fourth Amendment seizure.” Torres, 163 F.3d at 174.
256 The Smith court also stated that “[a]ctual innocence is not required for a common law favorable termination.” Smith, 87 F.3d at 113 (citing Restatement of the Law of Torts §§ 659, 660 (1938)).
257 The Court of Appeals applied the common-law elements in Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir. 1996) (“In order to state a prima facie case for a section 1983 claim of malicious prosecution, the plaintiff must establish the elements of the common law tort as it has developed over time.”). However, the Hilfirty court did not mention Albright, so Hilfirty does not shed light on the test that should apply post-Albright. But see Nawrocki v. Tp. of Coolbaugh, 34 Fed. Appx. 832, 837 (3d Cir. April 8, 2002) (nonprecedential opinion) (citing Hilfirty for the proposition that “Albright left standing” the requirement that Section 1983 plaintiffs establish the common-law elements).

In Merkle v. Upper Dublin School Dist., the Court of Appeals held that the district court had erred in failing to require proof of a Bill of Rights violation, but the Merkle majority did not appear to take issue with the district court’s assumption that the plaintiff must establish the common law malicious prosecution elements. See Merkle, 211 F.3d at 792; see also id. at 794 (“We believe that whether these defendants’ actions against Merkle were retaliatory is, for purposes of summary judgment, influenced by the strength of Merkle's claim against them for common law malicious prosecution.”). With respect to the common law elements, the district court had held that the plaintiff had failed to show a lack of probable cause; the Court of Appeals majority disagreed, finding evidence of a lack of probable cause and of malicious intent. See Merkle, 211 F.3d at 791, 795-96.

258 The relevant claim in Gilles asserted a First Amendment violation and did not sound in malicious prosecution, see Gilles, 427 F.3d at 203, but the Court of Appeals found Heck’s reasoning “equally applicable” to the First Amendment claim and thus applied Heck’s favorable-termination requirement, id. at 209.
259 In Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir. 2008), the Court of Appeals concluded that the district court properly held on summary judgment that there was probable cause to arrest the plaintiffs for disorderly conduct. On this basis the panel majority affirmed the grant of summary judgment dismissing Fourth Amendment claims for false arrest and malicious prosecution. In a footnote, the Court of Appeals stated that it “need not address whether there was probable cause with respect to the remaining charges – failure to disperse and obstructing a public passage – for the establishment of probable cause as to any one charge is sufficient to defeat Appellants' Fourth Amendment claims. Cf. Johnson, 477 F.3d at 82 n.9, 84-85 (applying this rule to malicious prosecution claim only where the circumstances leading to the arrest and prosecution are intertwined).” Startzell, 533 F.3d at 204 n.14. See also Reedy v. Evanson, 615 F.3d 197, 211 (3d Cir. 2010) (in case involving, inter alia, unlawful seizure, false imprisonment and malicious prosecution claims, stating in dictum that “[p]robable cause need only exist as to [one of the] offense[s] that could be charged under the circumstances” (quoting Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994))).

In Pitts v. Delaware, 646 F.3d 151 (3d Cir. 2011), the jury found for the plaintiff on his claims of race discrimination and illegal seizure but found for the defendant on the plaintiff’s claims for false arrest and malicious prosecution, see id. at 154. In the course of explaining why evidence of a lack of probable cause for one of the charges against the plaintiff would support the jury’s finding of race discrimination, the Court of Appeals noted that a jury finding that probable cause for that charge was absent
would not have been impermissibly inconsistent with the jury's verdict in favor of [the defendant] Spence on Pitts' malicious prosecution claim. Neither the instructions nor the general verdict form required the jury to conclude that every charge Spence brought against Pitts was supported by probable cause. Thus, the jury could have concluded that any one of the six charges brought against Pitts was supported by probable cause to find in favor of Spence on Pitts' malicious prosecution claim. Pitts, 646 F.3d at 158 n.4.

260 The defendant might also argue that a grand jury indictment breaks the chain of causation. The Court of Appeals has explained the concept of superseding causes:
[I]n situations in which a judicial officer or other independent intermediary applies the correct governing law and procedures but reaches an erroneous conclusion because he or she is misled in some manner as to the relevant facts, the causal chain is not broken and liability may be imposed upon those involved in making the misrepresentations or omissions. . . . However, . . . . where . . . the judicial officer is provided with the appropriate facts to adjudicate the proceeding but fails to properly apply the governing law and procedures, such error must be held to be a superseding cause, breaking the chain of causation for purposes of § 1983 and Bivens liability. Egervary v. Young, 366 F.3d 238, 250-51 (3d Cir. 2004). Though Egervary involved a judge’s decision, rather than a grand jury’s, the rationale of Egervary seems equally applicable to the grand jury context. (For a discussion of the possibility that Supreme Court precedents may limit the application of the superseding cause principle with respect to the issuance of warrants, see supra Instruction 4.12 cmt.) In any event, assuming that the supervening cause doctrine applies to grand jury indictments, its net effect seems similar to that of the lack-of-probable-cause requirement: Where a grand jury has indicted the plaintiff, the plaintiff must present evidence that the indictment was obtained through misrepresentations or other corrupt means. See also Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014) (holding that a prosecutor’s decision to charge did not necessarily break the causal chain because a reasonable jury could find that the prosecutor would not have filed charges in the absence of evidence fabricated by police officers).

261 Admittedly, both Marasco and Camiolo were decided based upon the lack-of-probable-cause element, so the statements in those cases concerning malice do not constitute holdings. But more recently the court of appeals affirmed the dismissal of a Section 1983 malicious prosecution claim based on “insufficient evidence of malice.” McKenna v. City of Philadelphia, 582 F.3d 447, 461-62 (3d Cir. 2009).
262 The Court of Appeals has indicated that the Heck bar is conceptually distinct from the favorable-termination element of a Section 1983 claim. See Kossler, 564 F.3d at 190 n.6 (stating that the court did “not need to apply Heck's test in the present case” because the plaintiff had in any event failed to establish the common law element of favorable termination). Despite this assertion of conceptual distinctiveness, the court of appeals has relied on both Kossler (applying the common law rule) and Gilles (applying the Heck bar) interchangeably in applying the Heck bar. Bronowicz v. Allegheny County, 804 F.3d 338, 347-48 (3d Cir. 2015).

A dismissal predicated on Heck should be without prejudice. Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016). A nolo contendere plea counts as a conviction for Heck purposes. Id. at 378.

263 See also Skinner v. Switzer, 131 S. Ct. 1289, 1298 (2011) (holding that plaintiff inmate could pursue claim for DNA testing under Section 1983 because success in that suit “would not ‘necessarily imply’ the invalidity of his conviction”); Long v. Atlantic City Police Dep’t, 670 F.3d 436, 438, 447 (3d Cir. 2012) (holding that inmate’s damages claim alleging that law enforcement defendants “conspired to obtain a capital murder conviction against him by knowingly presenting false evidence at his trial, and deliberately preventing him from obtaining DNA testing that would prove his innocence” was distinguishable from Skinner and “plainly barred by Heck”); Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002) (“[W]henever the challenge ultimately attacks the ‘core of habeas’ --the validity of the continued conviction or the fact or length of the sentence--a challenge, however denominated and regardless of the relief sought, must be brought by way of a habeas corpus petition.”); Torres v. Fauver, 292 F.3d 141, 143 (3d Cir. 2002) (“[T]he favorable termination rule does not apply to claims that implicate only the conditions, and not the fact or duration, of a prisoner's incarceration.”); McGee v. Martinez, 627 F.3d 933, 937 (3d Cir. 2010) (“The [Inmate Financial Responsibility Plan] payment schedule and the sanctions imposed for noncompliance are part of the execution of McGee's sentence. Accordingly we hold that the claim that they are illegal and invalid falls under the rubric of a § 2241 habeas petition.”).

The Third Circuit had previously reasoned that the Heck rationale extends to pending prosecutions: “[A] claim that, if successful, would necessarily imply the invalidity of a conviction on a pending criminal charge is not cognizable under § 1983.” Smith v. Holtz, 87 F.3d 108, 113 (3d Cir. 1996). However, the Supreme Court more recently rejected the assertion “that an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside.” Wallace v. Kato, 127 S.Ct. 1091, 1098 (2007). Under Wallace, prior to the defendant’s actual conviction Heck bars neither the accrual of a claim nor the running of the limitations period. Rather, “[i]f a plaintiff files a false arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.... If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck will require dismissal; otherwise, the civil action will proceed, absent some other bar to suit.” Wallace, 127 S. Ct. at 1098.

264 See Spencer v. Kemna, 523 U.S. 1, 21 (1998) (Souter, J., joined by O’Connor, Ginsburg & Breyer, JJ., concurring) (“[A] former prisoner, no longer ‘in custody,’ may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable termination requirement that it would be impossible as a matter of law for him to satisfy.”); id. at 25 n.8 (Stevens, J., dissenting) (“Given the Court’s holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear, as Justice Souter explains, that he may bring an action under 42 U.S.C. § 1983.”).
265 The Court of Appeals explained:
We recognize that concurring and dissenting opinions in Spencer v. Kemna... question the applicability of Heck to an individual, such as Petit, who has no recourse under the habeas statute.... But these opinions do not affect our conclusion that Heck applies to Petit's claims. We doubt that Heck has been undermined, but to the extent its continued validity has been called into question, we join on this point, our sister courts of appeals for the First and Fifth Circuits in following the Supreme Court's admonition "to lower federal courts to follow its directly applicable precedent, even if that precedent appears weakened by pronouncements in its subsequent decisions, and to leave to the Court 'the prerogative of overruling its own decisions.'" Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st Cir. 1998) (citing Agostini v. Felton, 521 U.S. 203, 237 (1997)); see Randell v. Johnson, 227 F.3d 300, 301- 02 (5th Cir. 2000). Gilles v. Davis, 427 F.3d 197, 209-10 (3d Cir. 2005).

266 However, in a nonprecedential opinion, the Court of Appeals has read Hector to assign the burden of proof on this issue to the plaintiff. See Steele v. City of Erie, 113 Fed. Appx. 456, 459 (3d Cir. Oct. 20, 2004) (“In Hector . . . , we held that a plaintiff claiming malicious prosecution must prove actual innocence as an element of his prima facie case.”).
267 The abuse of process alleged by the plaintiff in Jennings involved the use of the prosecution as leverage for an extortion scheme. Jennings, 567 F.2d at 1220 (“The goal of that conspiracy was extortion, to be accomplished by bringing a prosecution against him without probable cause and for an improper purpose.”).

4 PJI 13.1 | SECTION 1983 – BURDENS OF PROOF IN CIVIL AND CRIMINAL CASES

As you know, [plaintiff’s] claims in this case relate to [his/her] [arrest] [prosecution] for the crime of [describe crime].

[At various points in a criminal case,] the government must meet certain requirements in order to [stop, arrest, and ultimately] convict a person for a crime. It is important to distinguish between those requirements and the requirements of proof in this civil case.

[In order to “stop” a person, a police officer must have a “reasonable suspicion” that the person they stop has committed, is committing, or is about to commit a crime. There must be specific facts that, taken together with the rational inferences from those facts, reasonably warrant the stop.]

[In order to arrest a person, the police must have probable cause to believe the person committed a crime. Probable cause requires more than mere suspicion; however, it does not require that the officer have evidence sufficient to prove guilt beyond a reasonable doubt. The standard of probable cause represents a balance between the individual’s right to liberty and the government’s duty to control crime. Because police officers often confront ambiguous situations, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable officers.]

In order for a jury to convict a person of a crime, the government must prove the person’s guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves the jury firmly convinced of the defendant's guilt. If a jury in a criminal case thinks there is a real possibility that the defendant is not guilty, the jury must give the defendant the benefit of the doubt and find [him/her] not guilty.

[Thus, the fact that the jury found [plaintiff] not guilty in the criminal trial does not necessarily indicate that the jury in the criminal trial found [plaintiff] innocent; it indicates only that the government failed to prove [plaintiff] guilty beyond a reasonable doubt.]

[The existence of probable cause to make an arrest is evaluated in light of the facts and circumstances available to the police officer at the time. And probable cause is a less demanding standard than guilt beyond a reasonable doubt. Thus, the fact that the jury found [plaintiff] not guilty in the criminal trial does not indicate whether or not the police had probable cause to arrest [plaintiff].]

[Unlike the prior criminal trial, this is a civil case. [Plaintiff] has the burden of proving [his/her] case by the preponderance of the evidence. That means [plaintiff] has to prove to you, in light of all the evidence, that what [he/she] claims is more likely so than not so. In other words, if you were to put the evidence favorable to [plaintiff] and the evidence favorable to [defendant] on opposite sides of the scales, [plaintiff] would have to make the scales tip somewhat on [his/her] side. If [plaintiff] fails to meet this burden, the verdict must be for [defendant]. Notice that the preponderance-of-the-evidence standard, which [plaintiff] must meet in this case, is not as hard to meet as the beyond-a-reasonable-doubt standard, which the government must meet in a criminal case.]

COMMENT When this instruction is given, the last sentence of General Instruction 1.10 should be omitted.
(Last Updated July 2019)

V

5 PJI 0 | TITLE VII INTRODUCTORY INSTRUCTION

In this case the Plaintiff ________ makes a claim under a Federal Civil Rights statute that prohibits employers from discriminating against an employee [prospective employee] in the terms and conditions of employment because of the employee’s race, color, religion, sex (including sexual orientation or transgender status), or national origin.

More specifically, [plaintiff] claims that [he/she] was [describe the employment action at issue] by the defendant ________ because of [plaintiff’s] [protected status].

[Defendant] denies that [plaintiff] was discriminated against in any way. Further, [defendant] asserts that [describe any affirmative defenses].

I will now instruct you more fully on the issues you must address in this case.

COMMENT Referring to the parties by their names, rather than solely as “Plaintiff” and “Defendant,” can improve jurors’ comprehension. In these instructions, bracketed references to “[plaintiff]” or “[defendant]” indicate places where the name of the party should be inserted.

Note on the Relationship Between Title VII Actions and Actions Brought Under the Equal Pay Act

A claim for sex-based wage discrimination can potentially be brought under either the Equal Pay Act, or Title VII, or both. There are some similarities, and some important differences, between a claim under the Equal Pay Act and a Title VII action for sex-based wage discrimination.

The most important similarity between the two actions is that the affirmative defenses set forth in the Equal Pay Act — (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; and (iv) a differential based on any other factor other than sex — are applicable to Title VII actions for sex-based wage discrimination. This was made clear by the Bennett Amendment to Title VII. See the discussion in County of Washington v. Gunther, 452 U.S. 161 (1981).


The most important differences between the two actions are:

1. The Equal Pay Act does not require proof of intent to discriminate. The plaintiff recovers under the Equal Pay Act by proving that she received lower pay for substantially equal work. In contrast, Title VII claims for disparate treatment require proof of an intent to discriminate. See Lewis and Norman, Employment Discrimination Law § 7.15 (2d ed. 2001). But Title VII does not require the plaintiff to prove the EPA statutory requirements of “equal work” and “similar working conditions”.

In Gunther, supra, the Supreme Court explained the importance of retaining Title VII recovery as an alternative to recovery under the Equal Pay Act:
Under petitioners' reading of the Bennett Amendment, only those sex-based wage discrimination claims that satisfy the "equal work" standard of the Equal Pay Act could be brought under Title VII. In practical terms, this means that a woman who is discriminatorily underpaid could obtain no relief -- no matter how egregious the discrimination might be -- unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal redress under petitioners' interpretation. Similarly, if an employer used a transparently sex-biased system for wage determination, women holding jobs not equal to those held by men would be denied the right to prove that the system is a pretext for discrimination. Moreover, to cite an example arising from a recent case, Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702 (1978), if the employer required its female workers to pay more into its pension program than male workers were required to pay, the only women who could bring a Title VII action under petitioners' interpretation would be those who could establish that a man performed equal work: a female auditor thus might have a cause of action while a female secretary might not. Congress surely did not intend the Bennett Amendment to insulate such blatantly discriminatory practices from judicial redress under Title VII. 452 U.S. at 178-179.

2. Title VII’s burden-shifting scheme (see Instructions 5.1.1, 5.1.2) differs from the burdens of proof applicable to an action under the Equal Pay Act. The difference was explained by the Third Circuit in Stanziale v. Jargowsky, 200 F.3d 101, 107-108 (3d Cir. 2000), a case in which the plaintiff brought claims under Title VII, the ADEA, and the Equal Pay Act:
Unlike the ADEA and Title VII claims, claims based upon the Equal Pay Act, 29 U.S.C. § 206 et seq., do not follow the three-step burden-shifting framework of McDonnell Douglas; rather, they follow a two-step burden-shifting paradigm. The plaintiff must first establish a prima facie case by demonstrating that employees of the opposite sex were paid differently for performing "equal work" -- work of substantially equal skill, effort and responsibility, under similar working conditions. E.E.O.C. v. Delaware Dept. of Health and Social Services, 865 F.2d 1408, 1413-14 (3rd Cir. 1989). The burden of persuasion then shifts to the employer to demonstrate the applicability of one of the four affirmative defenses specified in the Act. Thus, the employer's burden in an Equal Pay Act claim -- being one of ultimate persuasion -- differs significantly from its burden in an ADEA [or Title VII] claim. Because the employer bears the burden of proof at trial, in order to prevail at the summary judgment stage, the employer must prove at least one affirmative defense "so clearly that no rational jury could find to the contrary." Delaware Dept. of Health, 865 F.2d at 1414.

The employer's burden is significantly different in defending an Equal Pay Act claim for an additional reason. The Equal Pay Act prohibits differential pay for men and women when performing equal work “except where such payment is made pursuant to” one of the four affirmative defenses. 29 U.S.C. § 206(d)(1) (emphasis added). We read the highlighted language of the statute as requiring that the employer submit evidence from which a reasonable factfinder could conclude not merely that the employer's proffered reasons could explain the wage disparity, but that the proffered reasons do in fact explain the wage disparity. See also Delaware Dept. of Health, 865 F.2d at 1415 (stating that "the correct inquiry was... whether, viewing the evidence most favorably to the [plaintiff], a jury could only conclude that the pay discrepancy resulted from" one of the affirmative defenses (emphasis added)). Thus, unlike an ADEA or Title VII claim, where an employer need not prove that the proffered legitimate nondiscriminatory reasons actually motivated the salary decision, in an Equal Pay Act claim, an employer must submit evidence from which a reasonable factfinder could conclude that the proffered reasons actually motivated the wage disparity.
3. The Equal Pay Act exempts certain specific industries from its coverage, including certain fishing and agricultural businesses. See 29 U.S.C. § 213. These industries are not, however, exempt from Title VII.

4. In contrast to Title VII, the Equal Pay Act has no coverage threshold defined in terms of the employer’s number of employees.

5. The statute of limitations for backpay relief is longer under the EPA. As stated in Lewis and Norman, Employment Discrimination Law § 7.20 (2d ed. 2001):
An EPA action is governed by the FLSA [Fair Labor Standards Act] statute of limitations. The FLSA provides a two year statute of limitations for filing, three years in the case of a “willful” violation. These statutes of limitation compare favorably from the plaintiff’s perspective with the 180-day or 300-day administrative filing deadlines of Title VII. Under Title VII, the statute of limitations for a pay claim1 begins to run upon the occurrence of an “unlawful employment practice,” which, pursuant to the 2009 amendments to 42 U.S.C. § 2000e-5(e), can include “when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” Id. § 2000e-5(e)(3)(A); see Mikula v. Allegheny County, 583 F.3d 181, 185-86 (3d Cir. 2009) (applying Section 2000e-5(e)(3)(A)).2 This amendment brings the accrual date for a Title VII claim more in line with the EPA mechanism, in which an EPA claim arises each time the employee receives lower pay than male employees doing substantially similar work.

6. “The Equal Pay Act, unlike Title VII, has no requirement of filing administrative complaints and awaiting administrative conciliation efforts.” County of Washington v. Gunther, 452 U.S. 161, 175, n.14 (1981).3

7. The Supreme Court decided in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), that discrimination on the basis of sexual orientation or transgender status is a subset of discrimination on account of sex under Title VII. It is not clear if this principle applies to the EPA. See Chapter 11. Where the plaintiff claims that wage discrimination is a violation of both Title VII and the Equal Pay Act, it will be necessary to give two sets of instructions, with the exception that the affirmative defenses provided by the Equal Pay Act (see Instructions 11.2.1-11.2.4) will be applicable to both claims. If a claim for sex-based wage discrimination is brought under Title VII only, then these Title VII instructions should be used, with the proviso that where sufficient evidence is presented, the defendant is entitled to an instruction on the affirmative defenses set forth in the Equal Pay Act. See Instructions 11.2.1-11.2.4 for instructions on those affirmative defenses.


Employment relationship

Title VII defines certain conduct by “employer[s]” toward “employees or applicants for employment” as “unlawful employment practice[s].” 42 U.S.C. § 2000e-2(a). In assessing whether the plaintiff counts as an employee for purposes of Title VII, decisionmakers should “look to the factors set forth in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992).” Covington v. International Association of Approved Basketball Officials, 710 F.3d 114, 119 (3d Cir. 2013); see also Nationwide Mutual Insurance, 503 U.S. at 319 (holding unanimously that the definition of “employee” as used in ERISA “incorporate[s] traditional agency law criteria for identifying master-servant relationships”). Decisionmakers should “focus the employment relationship analysis on ‘the level of control the defendant[s]... exerted over the plaintiff: which entity paid [the employees’] salaries, hired and fired them, and had control over their daily employment activities.’” Covington, 710 F.3d at 119 (quoting Covington v. Int’l Ass’n of Approved Basketball Officials, No. 08–3639, 2010 WL 3404977, at *2 (D.N.J. Aug. 26, 2010)); see also Faush v. Tuesday Morning, Inc., 808 F.3d 208, 209 (3d Cir. 2015) (holding that summary judgment was inappropriate because, under the circumstances, it was for the jury to decide whether the client of a temporary-staffing agency counted as an employer of one of the agency’s employees). To determine whether a shareholder-director of a business entity counts as that entity’s employee for purposes of Title VII, one should employ the multi-factor test set out in Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003). See Mariotti v. Mariotti Bldg. Products, Inc., 714 F.3d 761, 765-66 (3d Cir. 2013) (listing the Clackamas factors and holding that they apply in Title VII cases).

Religious Organizations

Title VII allows religious organizations to hire and employ employees on the basis of their religious beliefs. 42 U.S.C. § 2000e-1(a) (Title VII claim for religious discrimination cannot be brought against a “religious corporation, association, educational institution or society”). In LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007), the court listed the following factors as pertinent to whether a particular organization is within Title VII’s exemption for religious organizations:
Over the years, courts have looked at the following factors: (1) whether the entity operates for a profit, (2) whether it produces a secular product, (3) whether the entity's articles of incorporation or other pertinent documents state a religious purpose, (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue, (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees, (6) whether the entity holds itself out to the public as secular or sectarian, (7) whether the entity regularly includes prayer or other forms of worship in its activities, (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution, and (9) whether its membership is made up by coreligionists. In LeBoon, the court found the defendant, a Jewish Community Center, to be “primarily a religious organization” because it identified itself as such; it relied on coreligionists for financial support; area rabbis were involved in management decisions; and board meetings began with Biblical readings and “remained acutely conscious of the Jewish character of the organization.” The fact that the Center engaged in secular activities as well was not dispositive. Id. at 229-30. Accordingly the plaintiff, an evangelical Christian who was fired from her position as bookkeeper, could not recover under Title VII on grounds of religious discrimination.

By its terms, Title VII does not confer upon religious organizations the right to discriminate against employees on the basis of race, sex (including sexual orientation and transgender status), and national origin. But with respect to claims for wrongful termination, the First Amendment’s religion clauses give rise to an affirmative defense that “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 702, 709 n.4 (2012). The significance of this decision was reinforced by Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), which expanded the scope of the exception. That decision involved the Age Discrimination in Employment Act and Americans with Disabilities Act, but there is little doubt that the exception applies to Title VII and other federal and state antidiscrimination statutes. Further, while the discharge in Hosanna-Tabor implicated religious principles of the employer, the schools in Our Lady of Guadalupe were held entitled to the protection of the exception even though the decisions challenged there were said to be based on secular concerns. Id. at 2058 (“The school maintains that it based its decisions on classroom performance — specifically, Morrissey-Berru’s difficulty in administering a new reading and writing program, which had been introduced by the school’s new principal as part of an effort to maintain accreditation and improve the school’s academic program.”); id. at 2059 (“The school maintains that the decision was based on [Biel’s] poor performance — namely, a failure to observe the planned curriculum and keep an orderly classroom.”).

The Hosanna-Tabor Court engaged in a fact-specific analysis to conclude that the teacher in question was a minister, although it also held that “the ministerial exception is not limited to the head of a religious congregation,” but it declined “to adopt a rigid formula for deciding when an employee qualifies as a minister.” Id. at 707. Our Lady of Guadalupe School, while not attempting a comprehensive definition of the term, took a broad view of its reach. Plaintiffs were lay teachers in Catholic elementary schools without ministerial titles or special training and neither was held out by the schools as a minister or held herself out as such. Further, most of their work involved teaching secular subjects. Nevertheless, each taught religion classes and led their classes in prayer and other religious activities. The Court held that sufficed to bring them within the exception: “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” Id. at 2069. See also Petruska v. Gannon Univ., 462 F.3d 294, 299 (3d Cir. 2006) (pre-Hosanna-Tabor decision holding in a Title VII case that the ministerial exception “applies to any claim, the resolution of which would limit a religious institution's right to choose who will perform particular spiritual functions”).

Both Hosanna-Tabor and Our Lady of Guadalupe involved wrongful termination claims, and Hosanna-Tabor held that such claims were barred regardless of the type of relief sought. See Hosanna-Tabor, 132 S. Ct. at 709 (“The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.”). The logic of both clearly would embrace claims of failure to hire, but neither explicitly addressed whether or to what extent the exception barred challenges based on discrimination in terms and conditions of employment. See also Petruska, 462 F.3d at 308 n.11 (noting that the court was not deciding whether the ministerial exception would bar claims for hostile work environment sexual harassment). ). Cf. Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 964 (9th Cir. 2004) (review of a church’s decision to terminate plaintiff’s ministry foreclosed, but plaintiff’s hostile environment claims may be pursued).

The Hosanna-Tabor Court did make clear that, where the ministerial exception applies, it bars wrongful-termination claims regardless of the type of relief sought. See Hosanna-Tabor, 132 S. Ct. at 709. In addition, the ministerial exception applies even if the plaintiff asserts that the defendant’s claimed religious reason for the firing is merely pretextual. See id.

Discrimination because of religion

Title VII prohibits adverse employment actions motivated by a protected characteristic; among those characteristics is “religion.” 42 U.S.C. § 2000e–2(a)(1). Where a Title VII religious-discrimination claim is grounded on a claim that the employer was motivated by the plaintiff’s religious beliefs,4 the instructions provided in this Chapter should be a good fit. But “religion” as used in Title VII includes more than religious belief. “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer's business.” 42 U.S.C. § 2000e(j). Coupling this definition with the statutory prohibition on discrimination “because of... religion,” 42 U.S.C. § 2000e–2(a)(1), the Supreme Court has recognized a Title VII disparate-treatment claim for failure to accommodate a religious practice. See E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033-34 (2015) (holding that “religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated”). The Committee has not attempted to determine the ways in which the disparate-treatment instructions in this Chapter would need to be modified for application to a claim for failure to accommodate a religious practice.

Title VII Excludes RFRA Claims for Job-Related Federal Religious Discrimination:

In Francis v. Mineta, 505 F.3d 266, 270-71 (3d Cir. 2007), an employee attempted to bring an employment discrimination action under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-4. (The employee had failed to exhaust administrative remedies with the EEOC, so Title VII was unavailable to him.) The court held that “nothing in RFRA alters the exclusive nature of Title VII with regard to employees’ claims of religion-based employment discrimination.” The court relied on the legislative history of RFRA, which demonstrated that “Congress did not intend RFRA to create a vehicle for allowing religious accommodation claims in the context of federal employment to do an end run around the legislative scheme of Title VII..”

Title VII Protection of Pregnancy:

Since 1978, Title VII has included specific statutory language addressing pregnancy:
In 1978, Congress enacted the Pregnancy Discrimination Act, 92 Stat. 2076, which added new language to Title VII's definitions subsection. The first clause of the 1978 Act specifies that Title VII’s “ter[m] ‘because of sex’... include[s]... because of or on the basis of pregnancy, childbirth, or related medical conditions.” § 2000e(k). The second clause says that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes... as other persons not so affected but similar in their ability or inability to work....” Ibid. Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1344-45 (2015); see also id. at 1353-55 (explaining how the McDonnell Douglas proof framework applies to a claim “that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause”).

The Court of Appeals has held that the Pregnancy Discrimination Act’s reference to “related medical conditions” includes abortion. See Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) (concluding “that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion”).

On the subject of pension accrual rules that predated the enactment of the Pregnancy Discrimination Act, see AT & T Corp. v. Hulteen, 556 U.S. 701, 708 (2009) (“Although adopting a service credit rule unfavorable to those out on pregnancy leave would violate Title VII today, a seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA.”).

Interaction between disparate impact and disparate treatment principles

Concerning the interaction between disparate-impact and disparate-treatment principles under Title VII, see Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009) (holding that “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action,” but also noting that “Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race”). See also NAACP v. North Hudson Reg’l Fire & Rescue, 665 F.3d 464, 484-85 (3d Cir. 2011) (rejecting defendant’s argument that it should be allowed to maintain a residency requirement despite its disparate impact on African-Americans because the defendant feared disparate-treatment claims by Hispanic candidates).

Discrimination involving gender stereotypes

For a discussion of Title VII claims based on gender stereotyping, see Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 292 (3d Cir. 2009) (“[I]t is possible that the harassment Prowel alleges was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes.... Because both scenarios are plausible, the case presents a question of fact for the jury....”).

Discrimination on the basis of sexual orientation or transgender status

Although the Third Circuit earlier held that Title VII does not bar discrimination on the basis of sexual orientation, see Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Title VII does not prohibit discrimination based on sexual orientation.”), the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), overturned that result. It recognized that discrimination on the basis of sexual orientation or transgender status is a subset of sex discrimination. As the Court wrote:
“[a]n individual’s homosexuality or transgender status is not relevant to employment decisions,” “because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Id. at 1741.

Even while Bibby controlled, the Third Circuit recognized that discrimination based on sex or gender stereotypes (sometimes called “gender nonconformity”) might fall within Title VII’s prohibition of sex discrimination. See Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 292 (3d Cir. 2009) (“[I]t is possible that the harassment Prowel alleges was because of his sexual orientation, not his effeminacy. Nevertheless, this does not vitiate the possibility that Prowel was also harassed for his failure to conform to gender stereotypes.... Because both scenarios are plausible, the case presents a question of fact for the jury....”).

Federal Employee Claims

Title VII claims by federal employees are governed by a separate statutory section, which provides in relevant part that for various specified types of federal-government employees “[a]ll personnel actions affecting [such] employees or applicants for [such] employment... shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). The Court of Appeals has held that motivating factor causation applies to federal employee claims under that statute. Makky v. Chertoff, 541 F. 3d 205, 213-214 (3d Cir. 2008), although that decision did not focus on the language of Section 2000e-16(a).

The Supreme Court’s recent decision in Babb v. Wilkie, 140 S. Ct. 1168 (2020), may or may not have implications for Title VII discrimination cases brought by federal employees. Babb was a case claiming age discrimination, and the Court recognized a new causation structure for ADEA discrimination claims by federal employees. Parallel to § 2000e-16(a) of Title VII, the ADEA’s extension of protection from age discrimination to federal employees provides generally that “personnel actions... shall be made free from any discrimination based on age.” 29 U. S. C. §633a(a). Despite recognizing the default rule requiring proof of a “but-for cause” for antidiscrimination statutes, the Court read the “plain meaning of the critical statutory language” to “demand[] that personnel actions be untainted by any consideration of age.” Id. at 1171. That means that, while the plaintiff must prove that discrimination caused, in a but-for sense, a difference in her treatment, she does not have to establish that that different treatment resulted in a different ultimate outcome in order to establish a violation. Rather, the Court distinguished between processes and outcomes with respect to remedies. Proving taint suffices for a violation but does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation of §633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. But if age discrimination played a lesser part in the decision, other remedies may be appropriate.

Id. In other words, absent a showing of but-for causation in the ultimate result, plaintiff’s proof of a “taint” establishes a violation and entitles plaintiff to whatever remedies are appropriate when the final personnel action remained unaffected. However, such a plaintiff apparently must show something more than bias by someone involved in the process since the Court also wrote: “plaintiffs are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself.” Id. at 1170.

Babb may suggest, contrary to Makky, that motivating factor causation is not applicable to claims of discrimination in the outcome of personnel decisions. The contrary argument is that Section 2000e-16(d) applies “the provisions of §706(f) through (k), as applicable” to federal employee actions. And §706(g) contains the “same decision anyway” defense to full relief, thus suggesting that motivating factor causation applies in Section 2000e-16 suits. This possibility was noted in a footnote to Justice Thomas’s dissent in Babb. Id. at 1182 n.2.

(Last Updated July 2019)

Footnotes

1 For purposes of brevity, this discussion focuses on deadlines applicable to claims by private-sector employees. For discussion of deadlines applicable to claims by federal employees, see, e.g., Green v. Brennan, 136 S. Ct. 1769 (2016).
2 See also Noel v. Boeing Co., 622 F.3d 266, 273 (3d Cir. 2010) (holding that Section 2000e-5(e)(3)(A) “does not apply to failure-to-promote claims”).
3 As to Title VII’s administrative-exhaustion requirement, see 42 U.S.C. § 2000e-5; see also 1 MERRICK T. ROSSEIN, EMPLOYMENT DISCRIMINATION LAW AND LITIGATION § 11:1.50 (online edition updated December 2018) (discussing the plaintiff’s option to await the outcome of the administrative proceeding or to obtain a “right-to-sue” letter prior to that outcome).
“In Title VII actions, failure to exhaust administrative remedies is an affirmative defense in the nature of statute of limitations…. Because failure to exhaust administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving that the plaintiff has failed to exhaust administrative remedies.” Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997); see also Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1846, 1851 (2019) (unanimous opinion) (holding that Title VII’s requirement of administrative charge-filing “is not jurisdictional” and explaining that this requirement is instead “a [claim-]processing rule, albeit a mandatory one”).

In Williams, which involved the distinctive exhaustion requirement set by 29 C.F.R. § 1614.105 for suits by federal employees, the Court of Appeals evinced the view that the question of exhaustion could properly be submitted to the jury. See id. (“By failing to offer any evidence to the jury on an issue upon which he carried the burden of proof, the Postmaster effectively waived his affirmative defense.”). The Court of Appeals has not applied Williams to address the judge/jury division of labor in a case involving the more general exhaustion provisions in Section 2000e-5, but at least one other Court of Appeals has held that the questions to which a jury trial right attaches include “the defense in a Title VII case of having failed to file a timely administrative complaint.” Begolli v. Home Depot U.S.A., Inc., 701 F.3d 1158, 1160 (7th Cir. 2012). Compare Small v. Camden Cty., 728 F.3d 265, 269, 271 (3d Cir. 2013) (holding that compliance with the exhaustion requirement set by the Prison Litigation Reform Act presents a question that can be resolved by the judge).

In the event that a dispute over exhaustion presents a jury question, the court may wish to submit relevant interrogatories to the jury. As of this time, the Committee has not prepared a model instruction on exhaustion. The Committee welcomes feedback from users of the model instructions concerning the need for, and appropriate nature of, such a model instruction.

4 In assessing whether beliefs are religious, one should consider whether those beliefs “‘address[] fundamental and ultimate questions having to do with deep and imponderable matters,’ are ‘comprehensive in nature,’ and are accompanied by ‘certain formal and external signs.’” Fallon v. Mercy Catholic Med. Ctr., 877 F.3d 487, 491 (3d Cir. 2017) (quoting Africa v. Com. of Pa., 662 F.2d 1025, 1032 (3d Cir. 1981), and holding that the plaintiff’s anti-vaccination beliefs did not count as religious because they satisfied none of these three factors).

5 PJI 1.1 | TITLE VII | DISPARATE TREATMENT — MIXED-MOTIVE

In this case [plaintiff] is alleging that [defendant] [describe alleged disparate treatment] [plaintiff]. In order for [plaintiff] to recover on this discrimination claim against [defendant], [plaintiff] must prove that [defendant] intentionally discriminated against [plaintiff]. This means that [plaintiff] must prove that [his/her] [protected status] was a motivating factor in [defendant’s] decision to [describe action] [plaintiff].

To prevail on this claim, [plaintiff] must prove both of the following by a preponderance of the evidence:

First: [Defendant] [failed to hire [plaintiff]] [failed to renew [plaintiff’s] employment arrangement] [failed to promote [plaintiff]] [demoted [plaintiff]] [terminated [plaintiff]] [constructively discharged [plaintiff]] [or otherwise discriminated against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment]5; and

Second: [Plaintiff’s] [protected status] was a motivating factor in [defendant's] decision.


Although [plaintiff] must prove that [defendant] acted with the intent to discriminate, [plaintiff] is not required to prove that [defendant] acted with the particular intent to violate [plaintiff’s] federal civil rights.

In showing that [plaintiff's] [protected status] was a motivating factor for [defendant’s] action, [plaintiff] is not required to prove that [his/her] [protected status] was the sole motivation or even the primary motivation for [defendant's] decision. [Plaintiff] need only prove that [plaintiff’s protected status] played a motivating part in [defendant's] decision even though other factors may also have motivated [defendant].

As used in this instruction, [plaintiff’s] [protected status] was a “motivating factor” if [his/her] [protected status] played a part [or played a role] in [defendant’s] decision to [state adverse employment action] [plaintiff].

[For use where defendant sets forth a “same decision” affirmative defense:6

If you find that [defendant's] treatment of [plaintiff] was motivated by both discriminatory and lawful reasons, you must decide whether [plaintiff] is entitled to damages. [Plaintiff] is not entitled to damages if [defendant] proves by a preponderance of the evidence that [defendant] would have treated [plaintiff] the same even if [plaintiff's] [protected class] had played no role in the employment decision.]

COMMENT The Supreme Court has ruled that direct evidence is not required for a plaintiff to prove that discrimination was a motivating factor in a “mixed-motive” case, i.e., a case in which an employer had both legitimate and illegitimate reasons for making a job decision. Desert Palace Inc. v. Costa, 539 U.S. 90 (2003). The Desert Palace Court concluded that in order to be entitled to a mixed-motive instruction, “a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.’” Id. at 101 (quoting 42 U.S.C. § 2000e-2(m)). The mixed-motive instruction above — including the instruction on the affirmative defense — tracks the instructions approved in Desert Palace.

In Egan v. Delaware River Port Authority, 851 F.3d 263, 274 (3d Cir. 2017), the Court of Appeals applied the reasoning of Desert Palace to FMLA retaliation-for-exercise claims, and held “that direct evidence is not required to obtain a mixed-motive instruction under the FMLA.” The Egan court explained that, if a mixed-motive instruction is requested, the court “should... determine[] whether there [i]s evidence from which a reasonable jury could conclude that the [defendant] had legitimate and illegitimate reasons for its employment decision and that [the plaintiff’s] use of FMLA leave was a negative factor in the employment decision”; if so, the mixed-motive instruction is available. Id. at 275. For the moment, the Committee has not attempted to determine whether the standard outlined in Egan also governs in Title VII cases. That standard differs from the suggestions offered in prior versions of this Comment; those prior suggestions are set out in a footnote.7

Whatever the precise standard for determining when a mixed-motive instruction is available, it is clear that the distinction between mixed-motive and pretext cases is retained after Desert Palace. The Third Circuit has indicated that it retains that distinction. See, e.g., Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir. 2008) (“A Title VII plaintiff may state a claim for discrimination under either the pretext theory set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or the mixed-motive theory set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), under which a plaintiff may show that an employment decision was made based on both legitimate and illegitimate reasons.”).8 See also Hanes v. Columbia Gas of Pennsylvania Nisource Co., 2008 WL 3853342 at *4, n.12 (M.D. Pa. 2008) ( Third Circuit “adheres to a distinction between ‘pretext’ cases, in which the employee asserts that the employer's justification for an adverse action is false, and ‘mixed-motives’ cases, in which the employee asserts that both legitimate and illegitimate motivations played a role in the action”; “determinative factor” analysis applies to the former and “motivating factor” analysis applies to the latter).

Whether to give a mixed-motive or a pretext instruction (or both) is a question of law for the court. Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1097-98 (3d Cir.1995). See also Connelly v. Lane Const. Corp., 809 F.3d 780, 788 (3d Cir. 2016) (“[E]ven at trial, an employee may present his case under both [pretext and mixed-motive] theories, provided that, prior to instructing the jury, the judge decides whether one or both theories applies” (internal quotation marks and citation omitted).); Urban v. Bayer Corp. Pharmaceutical Div., 2006 WL 3289946 (D.N.J. 2006) (analyzing discrimination claim first under mixed-motive theory and then under pretext theory).

“Same Decision” Affirmative Defense in Mixed-Motive Cases

Where the plaintiff has shown intentional discrimination in a mixed motive case, the defendant can still avoid liability for money damages by demonstrating by a preponderance of the evidence that the same decision would have been made even in the absence of the impermissible motivating factor. If the defendant establishes this defense, the plaintiff is then entitled only to declaratory and injunctive relief, attorney’s fees and costs. Orders of reinstatement, as well as the substitutes of back and front pay, are prohibited if a same decision defense is proven. 42 U.S.C. §2000e-5(g)(2)(B).

Adverse Employment Action – General Considerations

Title VII provides that “[i]t shall be an unlawful employment practice for an employer... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).9 Failures or refusals to hire and discharges are specifically included within the statute’s scope. Other employment actions are included if they “otherwise... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.” Thus, wage discrimination counts as an adverse action, since it is discrimination with respect to compensation.10 The circumstances under which harassing conduct rises to the level of discrimination in the terms, conditions, or privileges of employment have been spelled out by caselaw,11 and Instructions 5.1.3 through 5.1.5 accordingly guide the jury through the application of the standards that the Supreme Court and Third Circuit caselaw have set. Likewise, constructive discharge counts as action that affects employment terms, conditions, or privileges,12 and Instruction 5.2.2 guides the jury on how to assess whether a constructive discharge has occurred. “[T]he ‘terms, conditions, or privileges of employment’ clearly include benefits that are part of an employment contract.”13 But, in addition, the term “privileges” encompasses benefits that, though they are not contractually required, are incidents of employment or form part and parcel of the employment relationship.14 The Court of Appeals has indicated that an alteration of the terms, conditions, or privileges of employment must be “serious and tangible” in order to be actionable.15 But there is not a great deal of Third Circuit caselaw addressing what meets that test or who should decide whether the test is met. Some of the relevant caselaw arose in the context of Title VII retaliation claims, which – before the Supreme Court’s 2006 decision in Burlington Northern – were subject (in the Third Circuit) to the same “adverse employment action” test as claims under Title VII’s substantive discrimination provision.16 In a number of instances, the Court of Appeals has affirmed grants of summary judgment that turned upon a ruling concerning the absence of an adverse employment action.17 On the other hand, where the material adverseness of an employment action requires assessment of fact-specific circumstances, the Court of Appeals has on at least one occasion specified that this assessment is for the jury rather than the judge.18 Failure to accommodate a religious practice can be the basis for a claim under Section 2000e-2(a)(1), but the model instructions do not attempt to formulate an instruction for use in such cases.19

Instruction 5.1.1 offers a list of alternatives by which the plaintiff could meet the “adverse employment action” element – failure to hire; failure to renew an employment agreement; failure to promote; demotion; termination; constructive discharge; or “otherwise discriminat[ing] against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment.” In a case where the plaintiff relies upon the last of these options (“otherwise discriminat[ing]”), the court will need to determine whether categorizing the event(s) in question as an adverse employment action presents a question of law for the court or a question for the jury. As noted below, some types of actions are categorically outside the ambit of actionable conduct (e.g., paid suspension pending investigation of alleged wrongdoing) and a case involving such an action (and no other adverse conduct) would not reach a jury (for lack of an adverse action). In other instances, the type of employment action might not be categorically sufficient or categorically insufficient, but rather might count as an adverse employment action only if it had enough of an effect (i.e., if it was serious and tangible); as to such actions, the Committee has not attempted to determine whether it is for the judge or for the jury to decide whether the action was serious and tangible so as to count as an adverse employment action.

Failure to Rehire as an Adverse Employment Action

In Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir. 2008), the court held that the failure to renew an employment arrangement, “whether at-will or for a limited period of time, is an employment action, and an employer violates Title VII if it takes an adverse employment action for a reason prohibited by Title VII.” See also Connelly v. Lane Const. Corp., 809 F.3d 780, 791 (3d Cir. 2016) (holding that plaintiff adequately pleaded a disparate treatment claim where her “allegations raise[d] a reasonable expectation that discovery w[ould] reveal evidence that [her] protected status as a woman played either a motivating or determinative factor in [defendant]’s decision not to rehire her”). The Instruction accordingly contains a bracketed alternative for failure to renew an employment arrangement as an adverse employment action.

Suspension with Pay Generally Not an Adverse Employment Action

“A paid suspension pending an investigation of an employee’s alleged wrongdoing does not fall under any of the forms of adverse action mentioned by Title VII’s substantive provision.” Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015). Thus, “a suspension with pay, ‘without more,’ is not an adverse employment action under the substantive provision of Title VII.” Id. (quoting Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)). Compare Jones, 796 F.3d at 325 (“[W]e need not consider and do not decide whether a paid suspension constitutes an adverse action in the retaliation context.”).

Failure of Employee to Satisfy an Objective Externally-Imposed Standard Necessary for Employment

In Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir. 2008), the court held that “a mixed-motive plaintiff has failed to establish a prima facie case of a Title VII employment discrimination claim if there is unchallenged objective evidence that s/he did not possess the minimal qualifications for the position plaintiff sought to obtain or retain.” The court noted that “[i]n this respect at least, requirements under Price Waterhouse do not differ from those of McDonnell Douglas.” The Makky court emphasized that the requirement of an objective qualification was minimal and would arise only in specific and limited fact situations where the plaintiff “does not possess the objective baseline qualifications to do his/her job will not be entitled to avoid dismissal.” The court explained the minimal qualification requirement as follows:

This involves inquiry only into the bare minimum requirement necessary to perform the job at issue. Typically, this minimum requirement will take the form of some type of licensing requirement, such as a medical, law, or pilot's license, or an analogous requirement measured by an external or independent body rather than the court or the jury. * * * We caution that we are not imposing a requirement that mixed-motive plaintiffs show that they were subjectively qualified for their jobs, i.e., performed their jobs well. Rather, we speak only in terms of an absolute minimum requirement of qualification, best characterized in those circumstances that require a license or a similar prerequisite in order to perform the job.

Id. (Emphasis added.)

The Makky court held that the determination of whether a plaintiff had obtained an objective qualification for employment is a question of fact. But it would be extremely rare for the court to have to instruct the jury on whether the plaintiff has met an objective job requirement within the meaning of Makky. The examples given by the court are in the nature of licenses or certifications by an external body — in the vast majority of cases, the parties will not dispute whether the license or certification was issued. (In Makky, the requirement was that the employee have a security clearance, and he could not contest that his clearance was denied.) In the rare case in which the existence of an objective externally-imposed qualification raises a question of fact, the court will need to add a third element to the basic instruction. For example:

Third: [Plaintiff] was [properly licensed] [met the requirements of an independent body that set minimum requirements for [plaintiff’s] job].

Animus of Employee Who Was Not the Ultimate Decisionmaker

Construing a statute that contains similar motivating-factor language, the Supreme Court ruled 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 [the Uniformed Services Employment and Reemployment Rights Act of 1994]” even if the ultimate employment decision is taken by one other than the supervisor with the animus. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194 (2011) (footnotes omitted). The Court did not explicitly state whether this ruling extends to claims under 42 U.S.C. § 2000e-2(m) (which also refers to discrimination as a motivating factor), though it noted the similarity between Section 2000e-2(m)’s language and that of the USERRA. Since Staub, however, the Third Circuit has frequently applied that decision in Title VII cases. E.g., McKenna v. City of Phila., 649 F.3d 171 (3d Cir. 2011); Jones v. SEPTA, 796 F.3d 323 (3d Cir. 2015).

(Last Updated July 2019)

Footnotes

5 Please see the Comment for discussion of the last item in this list of alternatives.
6 The Committee uses the term “affirmative defense” to refer to the burden of proof, and takes no position on the burden of pleading the same-decision defense.
7 Prior versions of this Comment (pre-Egan) stated as follows:

While direct evidence is not required to make out a mixed motive case, it is nonetheless true that the distinction between “mixed-motive” cases and “pretext” cases is often determined by whether the plaintiff produces direct rather than circumstantial evidence of discrimination. If the plaintiff produces direct evidence of discrimination, this may be sufficient to show that the defendant’s activity was motivated at least in part by animus toward a protected class, and therefore a “mixed-motive” instruction is warranted. If the evidence of discrimination is only circumstantial, then the defendant can argue that there was no animus at all, and that its employment decision can be explained completely by a non-discriminatory motive; it is then for the plaintiff to show that the alleged non-discriminatory motive is a pretext, and accordingly Instruction 5.1.2 should be given. See generally Stackhouse v. Pennsylvania State Police, 2006 WL 680871 at *4 (M.D. Pa. 2006) (“A pretext theory of discrimination is typically presented by way of circumstantial evidence, from which the finder of fact may infer the falsity of the employer's explanation to show bias. A mixed-motive theory of discrimination, however, is usually put forth by presenting evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude.”) (internal citations and quotations omitted).

On the proper use of a mixed-motive instruction — and the continuing viability of the mixed-motive/pretext distinction — see Matthew Scott and Russell Chapman, Much Ado About Nothing — Why Desert Palace Neither Murdered McDonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive, 36 St. Mary’s L.J. 395 (2005):
Thus, a case properly analyzed under [42 U.S.C.] § 2000e-2(a) (what some commentators refer to as pretext cases) involves the plaintiff alleging an improper motive for the defendant’s conduct, while the defendant disavows that motive and professes only a non-discriminatory motive. On the other hand, a true mixed motive case under [42 U.S.C.] § 2000e-2(m) involves either a defendant who... admits to a partially discriminatory reason for its actions, while also claiming it would have taken the same action were it not for the illegitimate rationale or... [there is] otherwise credible evidence to support such a finding.

The rationale for the distinction... is simple. When the defendant renounces any illegal motive, it puts the plaintiff to a higher standard of proof that the challenged employment action was taken because of the plaintiff’s race/color/religion/sex/national origin. But, the plaintiff, if successful, is entitled to the full panoply of damages under § 2000e-5. ...

At the same time, where the defendant is contrite and admits an improper motive (something no jury will take lightly), or there is evidence to support such a finding, the defendant’s liability risk is reduced to declaratory relief, attorneys’ fees and costs if the defendant proves it would have taken the same action even without considering the protected trait. The quid pro quo for this reduced financial risk is the lesser standard of liability (the challenged employment action need only be a motivating factor).

8 The Makky court’s statement (quoted in the text) should not be taken to suggest that the complaint must specify whether the plaintiff will rely on a pretext theory, a mixed-motive theory, or both. See Connelly v. Lane Const. Corp., 809 F.3d 780, 788 (3d Cir. 2016) (“The distinction between those two types of cases” has to do with types of proof, “and identifying the proof before there has been discovery would seem to put the cart before the horse.”).
9 In addition, Section 2000e-2(a)(2) provides that “[i]t shall be an unlawful employment practice for an employer... to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(2). Caselaw concerning disparate treatment claims tends to focus on Section 2000e-2(a)(1), whereas Section 2000e-2(a)(2) is often viewed as targeting practices that have a disparate impact. See, e.g., E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015) (noting that Sections 2000e-2(a)(1) and (2) are “often referred to as the ‘disparate treatment’ (or ‘intentional discrimination’) provision and the ‘disparate impact’ provision”). The discussion in the text focuses on Section 2000e-2(a)(1).
10 See Comment 5.0, discussing Washington Cty. v. Gunther, 452 U.S. 161 (1981).
11 See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“‘The phrase “terms, conditions, or privileges of employment” evinces a congressional intent “to strike at the entire spectrum of disparate treatment of men and women” in employment,’ which includes requiring people to work in a discriminatorily hostile or abusive environment.” (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (quoting City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)))); Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013) (“[T]he plaintiff must show that the work environment was so pervaded by discrimination that the terms and conditions of employment were altered.”).
12 See, e.g., Pennsylvania State Police v. Suders, 542 U.S. 129, 142-43 (2004).
13 Hishon v. King & Spalding, 467 U.S. 69, 74 (1984); see also id. at 75 (“If the evidence at trial establishes that the parties contracted to have petitioner considered for partnership, that promise clearly was a term, condition, or privilege of her employment. Title VII would then bind respondent to consider petitioner for partnership as the statute provides, i.e., without regard to petitioner’s sex.”).
14 “Those benefits that comprise the ‘incidents of employment,’ S.Rep. No. 867, 88th Cong., 2d Sess., 11 (1964), or that form ‘an aspect of the relationship between the employer and employees,’ Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178... (1971), may not be afforded in a manner contrary to Title VII.” Hishon, 467 U.S. at 75-76 (footnotes omitted). The Hishon Court also suggested that the question is whether the benefit in question “was part and parcel of [the relevant type of employee’s] status as an employee” of the employer. Id. at 76.
15 Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015) (quoting prior Third Circuit caselaw). In Jones, the court held that “[a] paid suspension pending an investigation of an employee’s alleged wrongdoing” did not count as an adverse action under Section 2000e–2(a)(1), because “the terms and conditions of employment ordinarily include the possibility that an employee will be subject to an employer’s disciplinary policies in appropriate circumstances.” Jones, 796 F.3d at 326 (quoting Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)). In Jones, the Court of Appeals affirmed the grant of summary judgment to the defendant. See Jones, 796 F.3d at 332.
16 See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300–01 (3d Cir. 1997) (holding “that the ‘adverse employment action’ element of a retaliation plaintiff’s prima facie case incorporates the same requirement that the retaliatory conduct rise to the level of a violation of 42 U.S.C. § 2000e–2(a)(1) or (2)” and that the plaintiff’s “allegations that she was subjected to ‘unsubstantiated oral reprimands’ and ‘unnecessary derogatory comments’” did not meet that test). See also Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 787-88 (3d Cir. 1998) (reversing grant of summary judgment to defendant on plaintiff’s ADA retaliation claim, and noting that while “minor or trivial actions that merely make an employee ‘unhappy’ are not sufficient to qualify as retaliation under the ADA,” relegating “an employee to an undesirable schedule can be more than a ‘trivial’ or minor change in the employee's working conditions”).
17 See Jones, 796 F.3d at 332; Harris v. Supervalu Holdings-PA LLC, 262 Fed. Appx. 470, 472 (3d Cir. 2008) (nonprecedential per curiam opinion). See also Walker v. Centocor Ortho Biotech, Inc., 558 Fed. Appx. 216, 220 (3d Cir. 2014) (nonprecedential opinion concerning Section 1981 claim); Barnes v. Nationwide Mut. Ins. Co., 598 Fed. Appx. 86, 87 (3d Cir. 2015) (same).
18 See Hampton v. Borough of Tinton Falls Police Dep’t, 98 F.3d 107, 116 (3d Cir. 1996) (“Although the rotation may not be a demotion, it came on the heels of [Hampton’s] EEOC filing, and plaintiffs argue that the road patrol assignment is less desirable than that of detective bureau. Moreover, Hampton remains in his new assignment even though it was supposed to have been temporary. The significance of these facts should be resolved by jury deliberations, not motions for summary judgment.”). This discussion in Hampton concerned retaliation claims (including under Title VII) – but, as noted above, the Court of Appeals during this time period borrowed the adverse-action test for Title VII retaliation claims from the principles governing Title VII discrimination claims.
19 See Comment 5.0 (discussing E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033-34 (2015)).

5 PJI 1.2 | TITLE VII | DISPARATE TREATMENT — PRETEXT

In this case [plaintiff] is alleging that [defendant] [describe alleged disparate treatment] [plaintiff]. In order for [plaintiff] to recover on this discrimination claim against [defendant], [plaintiff] must prove that [defendant] intentionally discriminated against [plaintiff]. This means that [plaintiff] must prove that [his/her] [protected status] was a determinative factor in [defendant’s] decision to [describe action] [plaintiff].

To prevail on this claim, [plaintiff] must prove both of the following by a preponderance of the evidence:

First: [Defendant] [failed to hire [plaintiff]] [failed to renew [plaintiff’s] employment arrangement] [failed to promote [plaintiff]] [demoted [plaintiff]] [terminated [plaintiff]] [constructively discharged [plaintiff]] [or otherwise discriminated against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment]20; and

Second: [Plaintiff’s] [protected status] was a determinative factor in [defendant's] decision.


Although [plaintiff] must prove that [defendant] acted with the intent to discriminate, [plaintiff] is not required to prove that [defendant] acted with the particular intent to violate [plaintiff’s] federal civil rights. Moreover, [plaintiff] is not required to produce direct evidence of intent, such as statements admitting discrimination. Intentional discrimination may be inferred from the existence of other facts.

You should weigh all the evidence received in the case in deciding whether [defendant] intentionally discriminated against [plaintiff]. [For example, you have been shown statistics in this case. Statistics are one form of evidence that you may consider when deciding whether a defendant intentionally discriminated against a plaintiff. You should evaluate statistical evidence along with all the other evidence.]

[Defendant] has given a nondiscriminatory reason for its [describe defendant’s action]. If you believe [defendant’s] stated reason and if you find that the [adverse employment action] would have occurred because of defendant’s stated reason regardless of [plaintiff’s] [protected status], then you must find for [defendant]. If you disbelieve [defendant’s] stated reason for its conduct, then you may, but need not, find that [plaintiff] has proved intentional discrimination. In determining whether [defendant’s] stated reason for its actions was a pretext, or excuse, for discrimination, you may not question [defendant’s] business judgment. You cannot find intentional discrimination simply because you disagree with the business judgment of [defendant] or believe it is harsh or unreasonable. You are not to consider [defendant's] wisdom. However, you may consider whether [plaintiff] has proven that [defendant’s] reason is merely a cover-up for discrimination.

Ultimately, you must decide whether [plaintiff] has proven that [his/her] [protected status] was a determinative factor in [defendant’s employment decision.] “Determinative factor” means that if not for [plaintiff’s] [protected status], the [adverse employment action] would not have occurred.

COMMENT On the distinction between mixed-motive and pretext cases (and the continuing viability of that distinction), see the Commentary to Instruction 5.1.1.

The McDonnell Douglas Burden-Shifting Test

The Instruction does not charge the jury on the complex burden-shifting formula established for pretext cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).21 Under the McDonnell Douglas formula a plaintiff who proves a prima facie case of discriminatory treatment raises a presumption of intentional discrimination. The defendant then has the burden of production, not persuasion, to rebut the presumption of discrimination by articulating a nondiscriminatory reason for its actions. If the defendant does articulate a nondiscriminatory reason, the plaintiff must prove intentional discrimination by demonstrating that the defendant’s proffered reason was a pretext, hiding the real discriminatory motive.

In Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998), the Third Circuit declared that “the jurors must be instructed that they are entitled to infer, but need not, that the plaintiff's ultimate burden of demonstrating intentional discrimination by a preponderance of the evidence can be met if they find that the facts needed to make up the prima facie case have been established and they disbelieve the employer's explanation for its decision.” The court also stated, however, that “[t]his does not mean that the instruction should include the technical aspects of the McDonnell Douglas burden shifting, a charge reviewed as unduly confusing and irrelevant for a jury.” The court concluded as follows:
Without a charge on pretext, the course of the jury's deliberations will depend on whether the jurors are smart enough or intuitive enough to realize that inferences of discrimination may be drawn from the evidence establishing plaintiff's prima facie case and the pretextual nature of the employer's proffered reasons for its actions. It does not denigrate the intelligence of our jurors to suggest that they need some instruction in the permissibility of drawing that inference. In Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 347 n.1 (3d Cir. 1999), the Third Circuit gave extensive guidance on the place of the McDonnell Douglas test in jury instructions:
The short of it is that judges should remember that their audience is composed of jurors and not law students. Instructions that explain the subtleties of the McDonnell Douglas framework are generally inappropriate when jurors are being asked to determine whether intentional discrimination has occurred. To be sure, a jury instruction that contains elements of the McDonnell Douglas framework may sometimes be required. For example, it has been suggested that "in the rare case when the employer has not articulated a legitimate nondiscriminatory reason, the jury must decide any disputed elements of the prima facie case and is instructed to render a verdict for the plaintiff if those elements are proved." Ryther [v. KARE 11], 108 F.3d at 849 n.14 (Loken, J., for majority of en banc court). But though elements of the framework may comprise part of the instruction, judges should present them in a manner that is free of legalistic jargon. In most cases, of course, determinations concerning a prima facie case will remain the exclusive domain of the trial judge. On proof of intentional discrimination, see Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1066-1067 (3d Cir. 1996) (“[T]he elements of the prima facie case and disbelief of the defendant's proffered reasons are the threshold findings, beyond which the jury is permitted, but not required, to draw an inference leading it to conclude that there was intentional discrimination.”).

In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510 (1993), the Supreme Court stated that a plaintiff in a Title VII case always bears the burden of proving whether the defendant intentionally discriminated against the plaintiff. The instruction follows the ruling in Hicks.

Determinative Factor

The reference in the instruction to a “determinative factor” is taken from Watson v. SEPTA, 207 F.3d 207 (3d Cir. 2000) (holding that the appropriate term in pretext cases is “determinative factor”, while the appropriate term in mixed-motive cases is “motivating factor”). See also LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 n.8 (3d Cir. 2007) (in a pretext case, the plaintiff must show that the prohibited intent was a “determinative factor” for the job action) (emphasis in original); Atkinson v. Lafayette College, 460 F.3d 447, 455 (3d Cir. 2006) (“Faced with legitimate, non-discriminatory reasons for Lafayette College's actions, the burden of proof rested with Atkinson to demonstrate that the reasons proffered were pretextual and that gender was a determinative factor in the decisions.”); Hanes v. Columbia Gas of Pennsylvania Nisource Co., 2008 WL 3853342 at *4, n.12 (M.D. Pa. 2008) ( Third Circuit “adheres to a distinction between ‘pretext’ cases, in which the employee asserts that the employer's justification for an adverse action is false, and ‘mixed-motives’ cases, in which the employee asserts that both legitimate and illegitimate motivations played a role in the action”; “determinative factor” analysis applies to the former and “motivating factor” analysis applies to the latter).

The plaintiff need not prove that the plaintiff’s protected status was the only factor in the challenged employment decision, but the plaintiff must prove that the protected status was a determinative factor. For example, if the employer fires women who steal office supplies but not men who steal office supplies, then the women’s gender is a determinative factor in the firing even though there is another factor (stealing office supplies) which if applied uniformly might have justified the challenged employment decision. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973) (“Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.”).22

Pretext

The Third Circuit described standards for proof of pretext in Doe v. C.A.R.S. Protection Plus, Inc. 527 F.3d 358, 370 (3d Cir. 2008):
In order to show pretext, a plaintiff must submit evidence which (1) casts doubt upon the legitimate reason proffered by the employer such that a fact-finder could reasonably conclude that the reason was a fabrication; or (2) would allow the fact-finder to infer that discrimination was more likely than not a motivating or determinative cause of the employee's termination. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994); Chauhan v. M. Alfieri Co., Inc., 897 F.2d 123, 128 (3d Cir. 1990). Put another way, to avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a fact-finder reasonably to infer that each of the employer's proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, that the proffered reason is a pretext). See also Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 2013) (“To make a showing of pretext, ‘the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action’” (quoting Fuentes, 32 F.3d at 764).).23

The reference in these opinions to “a motivating or determinative cause” seems to indicate that the two terms are interchangeable. But they are not, because a factor might “motivate” conduct and yet not be the “determinative” cause of the conduct — proof that the factor was determinative is thus a more difficult burden. The very distinction between pretext and mixed-motive cases is that in the former the plaintiff must show that discrimination is the “determinative” factor for the job action, while in the latter the plaintiff need only prove that discrimination is a “motivating” (i.e., one among others) factor. See, e.g., Stackhouse v. Pennsylvania State Police, 2006 WL 680871 at *4 (M.D. Pa. 2006) (“Whether a case is classified as one of pretext or mixed-motive has important consequences on the burden that a plaintiff has at trial, and hence on the instructions given to the jury”; “determinative factor” analysis applies to the former and “motivating factor” analysis applies to the latter) (citing Watson v. SEPTA, 207 F.3d 207, 214-15 & n.5 (3d Cir. 2000)). Accordingly, the instruction on pretext follows the standards set forth in Doe, Fuentes, and Burton, with the exception that it uses only the term “determinative” and not the term “motivating.”

Business Judgment

On the “business judgment” portion of the instruction, see Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir.1991), where the court stated that “[b]arring discrimination, a company has the right to make business judgments on employee status, particularly when the decision involves subjective factors deemed essential to certain positions.” The Billet court noted that “[a] plaintiff has the burden of casting doubt on an employer's articulated reasons for an employment decision. Without some evidence to cast this doubt, this Court will not interfere in an otherwise valid management decision.” The Billet court cited favorably the First Circuit’s decision in Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir.1979), where the court stated that “[w]hile an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination.”

Adverse Employment Action – General Considerations

Instruction 5.1.2 offers a list of alternatives by which the plaintiff could meet the “adverse employment action” element – failure to hire; failure to renew an employment agreement; failure to promote; demotion; termination; constructive discharge; or “otherwise discriminat[ing] against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment.” In a case where the plaintiff relies upon the last of these options (“otherwise discriminat[ing]”), the court will need to determine whether categorizing the event(s) in question as an adverse employment action presents a question of law for the court or a question for the jury. As noted below, some types of actions are categorically outside the ambit of actionable conduct (e.g., paid suspension pending investigation of alleged wrongdoing) and a case involving such an action (and no other adverse conduct) would not reach a jury (for lack of an adverse action). In other instances, the type of employment action might not be categorically sufficient or categorically insufficient, but rather might count as an adverse employment action only if it had enough of an effect (i.e., if it was sufficiently serious and tangible); as to such actions, the Committee has not attempted to determine whether it is for the judge or for the jury to decide whether the action was sufficiently serious and tangible to count as an adverse employment action. See Comment 5.1.1 for further discussion of this issue.

Failure to Rehire as an Adverse Employment Action

In Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir. 2008), the court held that the failure to renew an employment arrangement, “whether at-will or for a limited period of time, is an employment action, and an employer violates Title VII if it takes an adverse employment action for a reason prohibited by Title VII.” See also Connelly v. Lane Const. Corp., 809 F.3d 780, 791 (3d Cir. 2016) (holding that plaintiff adequately pleaded a disparate treatment claim where her “allegations raise[d] a reasonable expectation that discovery w[ould] reveal evidence that [her] protected status as a woman played either a motivating or determinative factor in [defendant]’s decision not to rehire her”). The Instruction accordingly contains a bracketed alternative for failure to renew an employment arrangement as an adverse employment action.

Suspension with Pay Generally Not an Adverse Employment Action

“A paid suspension pending an investigation of an employee’s alleged wrongdoing does not fall under any of the forms of adverse action mentioned by Title VII’s substantive provision.” Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015). Thus, “a suspension with pay, ‘without more,’ is not an adverse employment action under the substantive provision of Title VII.” Id. (quoting Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)). Compare Jones, 796 F.3d at 325 (“[W]e need not consider and do not decide whether a paid suspension constitutes an adverse action in the retaliation context.”).

Failure of Employee to Satisfy an Objective Externally-Imposed Standard Necessary for Employment

In Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir. 2008), the court declared that in both pretext and mixed-motive cases, a plaintiff “has failed to establish a prima facie case of a Title VII employment discrimination claim if there is unchallenged objective evidence that s/he did not possess the minimal qualifications for the position plaintiff sought to obtain or retain.” The court explained the minimal qualification requirement as a narrow one best expressed as “circumstances that require a license or a similar prerequisite in order to perform the job.”

It would be extremely rare for the court to have to instruct the jury on whether the plaintiff has met an objective job requirement within the meaning of Makky. The examples given by the court are in the nature of licenses or certifications by an external body — in the vast majority of cases, the parties will not dispute whether the license or certification was issued. In the rare case in which the existence of an objective externally-imposed qualification raises a question of fact, the court will need to add a third element to the basic instruction. For example:

Third: [Plaintiff] was [properly licensed] [met the requirements of an independent body that set minimum requirements for [plaintiff’s] job].


(Last Updated July 2019)

Footnotes

20 Please see the Comment for discussion of the last item in this list of alternatives.
21 Instruction 5.1.2’s statement of the elements of a pretext claim would require adjustment in a case involving a claim of pregnancy discrimination. See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1353-55 (2015) (explaining how the McDonnell Douglas proof framework applies to a claim “that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause”).
22 In Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323 (3d Cir. 2015), the court rejected the plaintiff’s contention “that a reasonable jury could draw an inference of discrimination because SEPTA declined to punish male employees who engaged in the same alleged misconduct as she.” Jones, 796 F.3d at 327-28. The court of appeals reasoned that even if the plaintiff’s supervisor had allowed a male employee “to underreport his vacation time to compensate him for unpaid overtime work,” and “even if this practice was against SEPTA rules, it was materially different from [the plaintiff’s] misconduct because [the male employee] did not fraudulently claim pay for work he never performed.” Id. at 328.
23 In In re Tribune Media Co., 902 F.3d 384 (3d Cir. 2018), the Court of Appeals upheld the lower courts’ rejection of the claimant’s Title VII race-discrimination wrongful-termination claim because the employer “provided a legitimate, non-discriminatory reason for his discharge” and because this stated “rationale was not pretextual because [the claimant] and [his allegedly-harassing co-worker] were both fired for engaging in the same conduct [and the claimant] gives us no examples of similarly situated individuals who were disciplined more leniently for the same type of conduct.” Tribune Media, 902 F.3d at 404.

5 PJI 1.3 | TITLE VII | HARASSMENT — QUID PRO QUO

[Plaintiff] alleges that [his/her] supervisor [name of supervisor], subjected [him/her] to harassment. It is for you to decide whether [employer] is liable to [plaintiff] for the actions of [supervisor].

To prevail on this claim, [plaintiff] must prove all of the following by a preponderance of the evidence:

First: [Plaintiff] was subjected to [describe activity] by [supervisor], because of [plaintiff's] [sex] [race] [religion] [national origin];

Second: [Supervisor’s] conduct was not welcomed by [plaintiff];

Third: [Plaintiff’s] submission to [supervisor's] conduct was an express or implied condition for receiving a job benefit or avoiding a job detriment;24

Fourth: [Plaintiff] was subjected to an adverse “tangible employment action”; a tangible employment action is defined as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits; and

Fifth: [Plaintiff's] [rejection of] [failure to submit to] [supervisor’s] conduct was a motivating factor in the decision to [describe the alleged tangible employment action].


If any of the above elements has not been proved by the preponderance of the evidence, your verdict must be for [defendant] and you need not proceed further in considering this claim.

[When a jury question is raised as to whether the harassing employee is the plaintiff’s supervisor, the following instruction may be given:

[Defendant] is liable for any discriminatory harassment the plaintiff has proven if the plaintiff also proves by a preponderance of the evidence that [name of person] is a supervisor. A supervisor is one who had the power to take tangible employment action against [plaintiff]. [As you will recall, a tangible employment action is defined as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.].]

COMMENT Instructions 5.1.3 through 5.1.5 address claims for harassment in violation of Title VII. A plaintiff asserting such a claim must show discrimination and must also establish the employer’s liability for that discrimination.25 The framework applicable to those two questions will vary depending on the specifics of the case.

The Supreme Court has declared that the “quid pro quo” and “hostile work environment” labels are not controlling for purposes of establishing employer liability. But the two terms do provide a basic demarcation for the kinds of harassment actions that are brought under Title VII. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 750 (1998) (“The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility.... The principal significance of the distinction is to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive.”) In other words, these terms retain significance with respect to the first inquiry (showing discrimination) rather than the second (determining employer liability).

Showing discrimination

One way to show discrimination is through what is known as a “quid pro quoclaim; Instruction 5.1.3 provides a model for instructions on such a claim. Another way to show discrimination is through what is termed a “hostile work environment” claim; Instructions 5.1.4 and 5.1.5 provide models for instructions on such claims.

Instruction 5.1.3's third element is appropriate for use in quid pro quo cases where the supervisor expressly or impliedly conditioned a job benefit (or avoidance of a job detriment) on the plaintiff’s submission to supervisor’s conduct at the time of the conduct. “However, [Third Circuit] law contains no requirement that the plaintiff show that the employer implicitly or explicitly threatened retaliation when making the advance.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 282 (3d Cir. 2000). So long as the plaintiff shows “that his or her response to unwelcome advances was subsequently used as a basis for a decision about compensation, etc....., the plaintiff need not show that submission was linked to compensation, etc. at or before the time when the advances occurred.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1297 (3d Cir. 1997), abrogated on other grounds by Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). See also 29 C.F.R. § 1604.11(a)(2). In a case where the plaintiff rests the quid pro quo claim on the argument that the plaintiff’s response was subsequently used as a basis for a decision concerning a job benefit or detriment, the third element in the model instruction should be revised or omitted.

Employer liability

Where an employee suffers an adverse tangible employment action as a result of a supervisor’s discriminatory harassment, the employer is strictly liable for the supervisor’s conduct. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (an employer is strictly liable for supervisor harassment that "culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment"); Faragher v. City of Boca Raton, 524 U.S. 775, 790 (1998) (stating that “there is nothing remarkable in the fact that claims against employers for discriminatory employment actions with tangible results, like hiring, firing, promotion, compensation, and work assignment, have resulted in employer liability once the discrimination was shown”).

By contrast, when no adverse tangible employment action occurred, the employer has an affirmative defense:
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.... 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. Ellerth, 524 U.S. at 765.

Instruction 5.1.3 is designed for use in cases that involve a tangible employment action. The instruction’s definition of “tangible employment action” is taken from Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).26 It should be noted that the failure to renew an employment arrangement can also constitute an adverse employment action. See Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir. 2008) (holding that the failure to renew an employment arrangement, “whether at-will or for a limited period of time, is an employment action, and an employer violates Title VII if it takes an adverse employment action for a reason prohibited by Title VII”). Compare Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 328 (3d Cir. 2015) (holding that a paid suspension while an employee was investigated for alleged misconduct was not a tangible employment action). As discussed below, it is possible that a plaintiff might frame a case as a quid pro quo case even though it does not involve evidence of an adverse tangible employment action; in such instances, the Ellerth/Faragher affirmative defense will be available. See Instructions 5.1.5 for an instruction on that affirmative defense.

Unfulfilled threats

In some instances, a supervisor might threaten an adverse employment action but fail to act on the threat after the plaintiff rejects the supervisor’s advances. In such a scenario, it is necessary to consider the implications for both the question of discrimination and the question of employer liability. On the question of discrimination, because such a claim “involves only unfulfilled threats, it should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct.” Ellerth, 524 U.S. at 754. And on the question of employer liability, because such a claim involves no tangible employment action, the Ellerth/Faragher affirmative defense will be available. In sum, such a case should be analyzed under the framework set forth in Instruction and Comment 5.1.5.

Submission to demands

In other instances, a supervisor’s threat of an adverse employment action might succeed in securing the plaintiff’s submission to the supervisor’s demand and the supervisor might therefore take no adverse tangible employment action of a sort that would be reflected in the official records of the employer. On the question of proving discrimination, it is not entirely clear whether Third Circuit caselaw would require a “hostile environment” analysis in such a case. The Robinson court suggested in dictum that in
cases in which an employee is told beforehand that his or her compensation or some other term, condition, or privilege of employment will be affected by his or her response to the unwelcome sexual advances.... , a quid pro quo violation occurs at the time when an employee is told that his or her compensation, etc. is dependent upon submission to unwelcome sexual advances. At that point, the employee has been subjected to discrimination because of sex.... Whether the employee thereafter submits to or rebuffs the advances, a violation has nevertheless occurred. Robinson, 120 F.3d at 1297. This aspect of Robinson is no longer good law with respect to cases in which the plaintiff rebuffs the supervisor’s advances and no adverse tangible employment action occurs; as noted above, under Ellerth a plaintiff in such a case would need to meet the hostile environment standard for proving discrimination. What is less clear is whether the same is true for cases in which the plaintiff submits to the supervisor’s advances. Neither Ellerth nor Faragher was such a case and those cases do not directly illuminate the question.

Similarly, on the question of employer liability Ellerth and Faragher do not directly address whether the Ellerth/Faragher affirmative defense would be available in such a case. The Second and Ninth Circuits have answered this question in the negative. The Second Circuit concluded that when a supervisor conditions an employee’s continued employment on the employee’s submission to the supervisor’s sexual demands and the employee submits, this “classic quid pro quo” constitutes a tangible employment action that deprives the employer of the affirmative defense. Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 94 (2d Cir. 2002). In such a situation, the Jin court reasoned, it is the supervisor’s “empowerment... as an agent who could make economic decisions affecting employees under his control that enable[s] him to force [the employee] to submit.” Id.; see also id. at 98 (stating that supervisor’s “use of his supervisory authority to require [plaintiff’s] submission was, for Title VII purposes, the act of the employer”). The Ninth Circuit has followed Jin, concluding that “a ‘tangible employment action’ occurs when the supervisor threatens the employee with discharge and, in order to avoid the threatened action, the employee complies with the supervisor's demands.” Holly D. v. California Institute of Technology, 339 F.3d 1158, 1167 (9th Cir. 2003).

Though the Third Circuit cited Jin’s reasoning with approval in Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), it is unclear whether this fact supports or undermines Jin’s persuasiveness in this circuit. On the one hand, in Suders the court of appeals endorsed Jin’s rationale: “in quid pro quo cases where a victimized employee submits to a supervisor's demands for sexual favors in return for job benefits, such as continued employment.... the more sensible approach... is to recognize that, by his or her actions, a supervisor invokes the official authority of the enterprise.” Suders, 325 F.3d at 458-59. But the Suders court did so in the course of holding that “a constructive discharge, when proved, constitutes a tangible employment action within the meaning of Ellerth and Faragher,”325 F.3d at 435 – a point on which the Supreme Court reversed, see Pennsylvania State Police v. Suders, 542 U.S. 129, 134 (2004) (holding that in order to count as a tangible employment action the constructive discharge must result from “an employer-sanctioned adverse action”).

It could be argued that Jin and Holly D. rest in tension with Ellerth, Faragher and Suders, given that when the plaintiff submits to a supervisor’s demand and no tangible employment action of an official nature is taken the supervisor’s acts are not as readily attributable to the company, see Ellerth, 524 U.S. at 762 (stressing that tangible employment actions are usually documented, may be subject to review by the employer, and may require the employer’s approval); see also Lutkewitte v. Gonzales, 436 F.3d 248, 263 (D.C. Cir. 2006) (Brown, J., concurring in judgment) (arguing that the panel majority should have rejected Jin and Holly D. rather than avoiding the question, and reasoning that “the unavailability of the affirmative defense in cases where a tangible employment action has taken place is premised largely on the notice (constructive or otherwise) that such an action gives to the employer-notice that the delegated authority is being used to discriminate against an employee”). But see Jin, 310 F.3d at 98 (“though a tangible employment action ‘in most cases is documented in official company records, and may be subject to review by higher level supervisors,’ the Supreme Court did not require such conditions in all cases.”) (quoting, with added emphasis, Ellerth, 524 U.S. at 762).

Some uncertain light was shed on the availability of the Ellerth/Faragher defense, in a submission-to-demands case, by Moody v. Atlantic City Board of Education, 870 F.3d 206 (3d Cir. 2017). In Moody, the plaintiff alleged that her supervisor “told her that she would get an employment contract if she had sex with him,” and that – perceiving a threat to her job – she “reluctantly had sex with him.” Id. at 211. (The court of appeals had no occasion to analyze this as a quid pro quo claim because the plaintiff stated the intent to proceed under a hostile-environment framework rather than a quid pro quo framework. See id. at 213.) The court of appeals held that there were disputed questions of material fact that required resolution in order to determine whether the defendant could invoke the Ellerth/Faragher defense. See id. at 220. But in so holding, the court of appeals did not rely upon the plaintiff’s allegation that she submitted to her supervisor’s demand for sex. Rather, the court of appeals reasoned that “[a] reasonable juror could conclude that Marshall gave Moody [work] hours to entice her to accede to his sexual demands and then reduced her hours after she rejected him”; accordingly, the court reasoned, there was “a disputed issue of material fact as to whether she suffered a tangible employment action” – namely, whether the supervisor reduced the plaintiff’s hours after she rejected him. Id. at 219. (By “rejected,” the court was referring to the plaintiff’s account that, after submitting to the demand for sex, she told her supervisor it would never happen again. Id. at 211.)

If the court concludes that it is appropriate to follow the approach taken in Jin and Holly D. – a question that, as noted above, appears to be unsettled – then the court should consider whether to refer only to a ‘tangible employment action’ rather than an ‘adverse tangible employment action.’ See Jin, 310 F.3d at 101 (holding that it was error to “use[] the phrase ‘tangible adverse action’ instead of ‘tangible employment action’” and that such error was “especially significant in the context of this case, where we hold that an employer is liable when a supervisor grants a tangible job benefit to an employee based on the employee’s submission to sexual demands”).

Definition of “supervisor”

“[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., 133 S. Ct. 2434, 2439 (2013). See also Moody, 870 F.3d at 217 (“[T]he record here supports the conclusion that Marshall was Moody’s supervisor because (a) the Board empowered him as the custodial foreman to select from the list of substitute custodians who could actually work at New York Avenue School;... (b) the Board conceded that while Moody was on school premises, Marshall served in a supervisory role; (c) the record identifies no other person who was present full time or even sporadically on the school’s premises, or anywhere for that matter, who served as Moody’s supervisor; and (d) since Moody’s primary benefit from her employment was hourly compensation, and since Marshall controlled 70% of her hours, his decision to assign or withhold hours significantly affected her pay.”).

(Last Updated July 2019)

Footnotes

24 This third element in the Instruction may require modification in some cases. See the Comment’s discussion of Farrell v. Planters Lifesavers Co., 206 F.3d 271, 282 (3d Cir. 2000), Robinson v. City of Pittsburgh, 120 F.3d 1286, 1297 (3d Cir. 1997), abrogated on other grounds by Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), and 29 C.F.R. § 1604.11(a)(2).
25 A supervisor cannot be liable under Title VII for acts of harassment. See Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1078 (3d Cir. 1996) (concluding "that Congress did not intend to hold individual employees liable under Title VII").
26 For a case finding a jury question as to the existence of a tangible employment action, see Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 219 (3d Cir. 2017) (holding that “[a] reasonable juror could conclude that Marshall gave Moody [work] hours to entice her to accede to his sexual demands and then reduced her hours after she rejected him”).

5 PJI 1.4 | TITLE VII | HARASSMENT — HOSTILE WORK ENVIRONMENT — TANGIBLE EMPLOYMENT ACTION

[Plaintiff] claims that [he/she] was subjected to harassment by [names] and that this harassment was motivated by [plaintiff’s] [protected status].

[Employer] is liable for the actions of [names] in [plaintiff's] claim of harassment if [plaintiff] proves all of the following elements by a preponderance of the evidence:

First: [Plaintiff] was subjected to [describe alleged conduct or conditions giving rise to plaintiff's claim] by [names].

Second: [Names] conduct was not welcomed by [plaintiff].

Third: [Names] conduct was motivated by the fact that [plaintiff] is a [membership in a protected class].

Fourth: The conduct was so severe or pervasive that a reasonable person in [plaintiff's] position would find [plaintiff's] work environment to be hostile or abusive. This element requires you to look at the evidence from the point of view of a reasonable [member of plaintiff’s protected class] reaction to [plaintiff’s] work environment.

Fifth: [Plaintiff] believed [his/her] work environment to be hostile or abusive as a result of [names] conduct.

Sixth: [Plaintiff] suffered an adverse “tangible employment action” as a result of the hostile work environment; a tangible employment action is defined as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.


[For use when the alleged harassment is by non-supervisory employees:

Seventh: Management level employees knew, or should have known, of the abusive conduct. Management level employees should have known of the abusive conduct if 1) an employee provided management level personnel with enough information to raise a probability of [protected class] harassment in the mind of a reasonable employer, or if 2) the harassment was so pervasive and open that a reasonable employer would have had to be aware of it.]


COMMENT If the court wishes to provide a more detailed instruction on what constitutes a hostile work environment, such an instruction is provided in 5.2.1.

The Court of Appeals has set out the elements of a hostile work environment claim as follows:


To succeed on a hostile work environment claim, the plaintiff must establish that

1) the employee suffered intentional discrimination because of his/her sex,

2) the discrimination was severe or pervasive,

3) the discrimination detrimentally affected the plaintiff,

4) the discrimination would detrimentally affect a reasonable person in like circumstances, and

5) the existence of respondeat superior liability.


Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).

It should be noted that constructive discharge is the adverse employment action that is most common with claims of hostile work environment.27 Instruction 5.2.2 provides an instruction setting forth the relevant factors for a finding of constructive discharge. That instruction can be used to amplify the term “adverse employment action” in appropriate cases. In Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 (3d Cir. 2006), the court held that an ADA plaintiff cannot receive back pay in the absence of a constructive discharge. “Put simply, if a hostile work environment does not rise to the level where one is forced to abandon the job, loss of pay is not an issue.” As ADA damages are coextensive with Title VII damages — see the Comment to Instruction 9.4.1 — the ruling from Spencer appears to be applicable to Title VII hostile work environment cases.

The instruction’s definition of “tangible employment action” is taken from Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).28 It should be noted that the failure to renew an employment arrangement can also constitute an adverse employment action. See Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir. 2008) (holding that the failure to renew an employment arrangement, “whether at-will or for a limited period of time, is an employment action, and an employer violates Title VII if it takes an adverse employment action for a reason prohibited by Title VII”). Compare Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 328 (3d Cir. 2015) (holding that a paid suspension while an employee was investigated for alleged misconduct was not a tangible employment action).

Liability for Non-Supervisors

“[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., 133 S. Ct. 2434, 2439 (2013).29 Respondeat superior liability for harassment by non-supervisory employees exists only where the employer “knew or should have known about the harassment, but failed to take prompt and adequate remedial action.” Jensen v. Potter, 435 F.3d 444, 453 (3d Cir. 2006) (internal quotations omitted).30 In a case where a plaintiff suffered “harassment by [non-supervisory] co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways,” the Supreme Court has stated that “the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent.” Vance, 133 S. Ct. at 2451. See also Kunin v. Sears Roebuck and Co., 175 F.3d 289, 294 (3d Cir. 1999):
[T]here can be constructive notice in two situations: where an employee provides management level personnel with enough information to raise a probability of sexual harassment in the mind of a reasonable employer, or where the harassment is so pervasive and open that a reasonable employer would have had to be aware of it. We believe that these standards strike the correct balance between protecting the rights of the employee and the employer by faulting the employer for turning a blind eye to overt signs of harassment but not requiring it to attain a level of omniscience, in the absence of actual notice, about all misconduct that may occur in the workplace. The court of appeals has drawn upon agency principles for guidance on the definition of “management level” personnel:
[A]n employee's knowledge of allegations of coworker sexual harassment may typically be imputed to the employer in two circumstances: first, where the employee is sufficiently senior in the employer's governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee's general managerial duties. In this case, the employee usually has the authority to act on behalf of the employer to stop the harassment, for example, by disciplining employees or by changing their employment status or work assignments....

Second, an employee's knowledge of sexual harassment will be imputed to the employer where the employee is specifically employed to deal with sexual harassment. Typically such an employee will be part of the employer's human resources, personnel, or employee relations group or department. Often an employer will designate a human resources manager as a point person for receiving complaints of harassment. In this circumstance, employee knowledge is imputed to the employer based on the specific mandate from the employer to respond to and report on sexual harassment.
Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 107-08 (3d Cir. 2009).

For a case in which a jury question was raised as to whether the employer’s efforts to remedy a non-supervisor’s harassment were prompt and adequate, see Andreoli v. Gates, 482 F.3d 641, 648 (3d Cir. 2007) (Rehabilitation Act) (employee had to speak to five supervisors in order to elicit any response from management about the non-supervisor’s acts of harassment, and even then the employer took five months to move the employee to a different shift; no attempts were made to discipline or instruct the harassing employee).

Characteristics of a Hostile Work Environment

In sexual harassment cases, examples of conduct warranting a finding of a hostile work environment include verbal abuse of a sexual nature; graphic verbal commentaries about an individual's body, sexual prowess, or sexual deficiencies; sexually degrading or vulgar words to describe an individual; pinching, groping, and fondling; suggestive, insulting, or obscene comments or gestures; the display in the workplace of sexually suggestive objects, pictures, posters or cartoons; asking questions about sexual conduct; and unwelcome sexual advances. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (“discriminatory intimidation, ridicule, and insult”); Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 60-61 (1986) (repeated demands for sexual favors, fondling, following plaintiff into women's restroom, and supervisor's exposing himself); Mandel v. M & Q Packaging Corp., 706 F.3d 157, 168 (3d Cir. 2013) (stressing that inquiry “must consider the totality of the circumstances” rather than viewing component parts separately).

The Third Circuit has described the standards for a hostile work environment claim, as applied to sex discrimination, in Weston v. Pennsylvania, 251 F.3d 420, 425-426 (3d Cir. 2001):
Hostile work environment harassment occurs when unwelcome sexual conduct unreasonably interferes with a person’s performance or creates an intimidating, hostile, or offensive working environment.... In order to be actionable, the harassment must be so severe or pervasive that it alters the conditions of the victim's employment and creates an abusive environment. Spain v. Gallegos, 26 F.3d 439, 446-47 (3d Cir.1994). To judge whether the environment was hostile under this standard, one must “look[] at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 215 (3d Cir. 2017) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (citation and internal quotation marks omitted)).

Title VII protects only against harassment based on discrimination against a protected class. It is not “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998). “Many may suffer severe harassment at work, but if the reason for that harassment is one that is not prescribed by Title VII, it follows that Title VII provides no relief.”Jensen v. Potter, 435 F.3d 444, 447 (3d Cir. 2006).

Severe or Pervasive Activity

The terms “severe or pervasive” set forth in the instruction are in accord with Supreme Court case law and provide for alternative possibilities for finding harassment. See Jensen v. Potter, 435 F.3d 444, 447, n.3 (3d Cir. 2006) (“The disjunctive phrasing means that ‘severity’ and ‘pervasiveness’ are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive.”) (quoting 2 C. Sullivan et. al., Employment Discrimination Law 455 (3d ed. 2002). See, e.g., Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 215 (3d Cir. 2017) (finding evidence that met the “severe” test where plaintiff alleged that her supervisor “expected [her] to give sexual favors in exchange for work, touched [her] against her wishes, made sexual comments to her, and exposed himself to her”).

Subjective and Objective Components

The Supreme Court in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), explained that a hostile work environment claim has both objective and subjective31 components. A hostile environment must be “one that a reasonable person would find hostile and abusive, and one that the victim in fact did perceive to be so.” The instruction accordingly sets forth both objective and subjective components.

Hostile Work Environment That Pre-exists the Plaintiff’s Employment

The instruction refers to harassing “conduct” that “was motivated by the fact that [plaintiff] is a [membership in a protected class].” This language is broad enough to cover the situation where the plaintiff is the first member of a protected class to enter the work environment, and the working conditions pre-existed the plaintiff’s employment. In this situation, the “conduct” is the refusal to change an environment that is hostile to members of the plaintiff’s class. The court may wish to modify the instruction so that it refers specifically to the failure to correct a pre-existing environment.

Harassment as Retaliation for Protected Activity

In Jensen v. Potter, 435 F.3d 444, 446 (3d Cir. 2006), the court held that the retaliation provision of Title VII “can be offended by harassment that is severe or pervasive enough to create a hostile work environment.” The Jensen court also declared that “our usual hostile work environment framework applies equally to Jensen’s claim of retaliatory harassment.” But subsequently the Supreme Court in Burlington N. & S.F. Ry. Co. v. White, 548 U.S.53, 68 (2006), set forth a legal standard for determining retaliation that appears to be less rigorous than the standard for determining a hostile work environment. The Court in White declared that a plaintiff has a cause of action for retaliation under Title VII if the employer’s actions in response to protected activity “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” After White, the Title VII retaliation provision can be offended by any activity of the employer — whether harassment or some other action — that satisfies the White standard. See Instruction 5.1.7 for a general instruction on retaliation in Title VII actions.

Religious Discrimination

Employees subject to a hostile work environment on the basis of their religion are entitled to recovery under Title VII, pursuant to the same legal standards applied to sex discrimination. See Abramson v. William Paterson College, 260 F.3d 265, 277 n.5 (3d Cir. 2001) (“We have yet to address a hostile work environment claim based on religion. However, Title VII has been construed under our case law to support claims of a hostile work environment with respect to other categories (i.e., sex, race, national origin). We see no reason to treat Abramson's hostile work environment claim any differently, given Title VII's language.”).

(Last Updated July 2019)

Footnotes

27 Instruction 5.1.4 is appropriate for use in cases where the evidence supports a claim that the constructive discharge resulted from an official act or acts. However, where the constructive discharge did not result from an official act, an affirmative defense is available to the employer and Instructions 5.1.5 should be used instead. See Comment 5.1.5 (discussing Pennsylvania State Police v. Suders, 542 U.S. 129, 150 (2004).
28 For a case finding a jury question as to the existence of a tangible employment action, see Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 219 (3d Cir. 2017) (holding that “[a] reasonable juror could conclude that Marshall gave Moody [work] hours to entice her to accede to his sexual demands and then reduced her hours after she rejected him”).
29 Applying Vance, the panel majority in Moody v. Atlantic City Board of Education cited multiple factors in holding that a custodial foreman was the plaintiff’s supervisor:
[T]he record here supports the conclusion that Marshall was Moody’s supervisor because (a) the Board empowered him as the custodial foreman to select from the list of substitute custodians who could actually work at New York Avenue School;… (b) the Board conceded that while Moody was on school premises, Marshall served in a supervisory role; (c) the record identifies no other person who was present full time or even sporadically on the school’s premises, or anywhere for that matter, who served as Moody’s supervisor; and (d) since Moody’s primary benefit from her employment was hourly compensation, and since Marshall controlled 70% of her hours, his decision to assign or withhold hours significantly affected her pay. Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 217 (3d Cir. 2017).

30 “[E]mployer liability for co-worker harassment exists only if the employer failed to provide a reasonable avenue for complaint or, alternatively, if the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.” Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009).
31 See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 168-69 (3d Cir. 2013) (noting that “the inherently subjective question of whether particular conduct was unwelcome presents difficult problems of proof and turns on credibility determinations,” and finding jury question on this issue despite evidence that plaintiff “engaged in certain unprofessional conduct”).

5 PJI 1.5 | TITLE VII | HARASSMENT — HOSTILE WORK ENVIRONMENT — NO TANGIBLE EMPLOYMENT ACTION

[Plaintiff] claims that [he/she] was subjected to harassment by [names] and that this harassment was motivated by [plaintiff’s] [protected status].

[Employer] is liable for the actions of [names] in [plaintiff's] claim of harassment if [plaintiff] proves all of the following elements by a preponderance of the evidence:

First: [Plaintiff] was subjected to [describe alleged conduct or conditions giving rise to plaintiff's claim] by [names].

Second: [Names] conduct was not welcomed by [plaintiff].

Third: [Names] conduct was motivated by the fact that [plaintiff] is a [membership in a protected class].

Fourth: The conduct was so severe or pervasive that a reasonable person in [plaintiff's] position would find [plaintiff's] work environment to be hostile or abusive. This element requires you to look at the evidence from the point of view of a reasonable [member of plaintiff’s protected class] reaction to [plaintiff’s] work environment.

Fifth: [Plaintiff] believed [his/her] work environment to be hostile or abusive as a result of [names] conduct.


[For use when the alleged harassment is by non-supervisory employees:

Sixth: Management level employees knew, or should have known, of the abusive conduct and failed to take prompt and adequate remedial action. Management level employees should have known of the abusive conduct if 1) an employee provided management level personnel with enough information to raise a probability of [protected class] harassment in the mind of a reasonable employer, or if 2) the harassment was so pervasive and open that a reasonable employer would have had to be aware of it.]

[In the event this Instruction is given, omit the following instruction regarding the employer’s affirmative defense.]

If any of the above elements has not been proved by a preponderance of the evidence, your verdict must be for [defendant] and you need not proceed further in considering this claim. If you find that the elements have been proved, then you must consider [employer’s] affirmative defense. I will instruct you now on the elements of that affirmative defense.

You must find for [defendant] if you find that [defendant] has proved both of the following elements by a preponderance of the evidence:

First: [Defendant] exercised reasonable care to prevent harassment in the workplace on the basis of [protected status], and also exercised reasonable care to promptly correct any harassing behavior that does occur.

Second: [Plaintiff] unreasonably failed to take advantage of any preventive or corrective opportunities provided by [defendant].


Proof of the four following facts will be enough to establish the first element that I just referred to, concerning prevention and correction of harassment:

1. [Defendant] had established an explicit policy against harassment in the workplace on the basis of [protected status].

2. That policy was fully communicated to its employees.

3. That policy provided a reasonable way for [plaintiff] to make a claim of harassment to higher management.

4. Reasonable steps were taken to correct the problem, if raised by [plaintiff].


On the other hand, proof that [plaintiff] did not follow a reasonable complaint procedure provided by [defendant] will ordinarily be enough to establish that [plaintiff] unreasonably failed to take advantage of a corrective opportunity.

COMMENT If the court wishes to provide a more detailed instruction on what constitutes a hostile work environment, such an instruction is provided in 5.2.1.

The Court of Appeals has set out the elements of a hostile work environment claim as follows:
To succeed on a hostile work environment claim, the plaintiff must establish that

1) the employee suffered intentional discrimination because of his/her sex,

2) the discrimination was severe or pervasive,

3) the discrimination detrimentally affected the plaintiff,

4) the discrimination would detrimentally affect a reasonable person in like circumstances, and

5) the existence of respondeat superior liability.




Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).

This instruction is to be used in discriminatory harassment cases where the plaintiff did not suffer any “tangible” employment action such as discharge or demotion, but rather suffered “intangible” harm flowing from harassment that is “sufficiently severe or pervasive to create a hostile work environment.” Faragher v. Boca Raton, 524 U.S. 775, 808 (1998).32 In Faragher and in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Court held that an employer is strictly liable for supervisor harassment that “culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Ellerth, 524 U.S. at 765. But when no such tangible action is taken, the employer may raise an affirmative defense to liability. To prevail on the basis of the defense, the employer must prove that “(a) [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior,”33 and that (b) the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”34 Ellerth, 524 U.S. at 751 (1998).

Besides the affirmative defense provided by Ellerth, the absence of a tangible employment action also justifies requiring the plaintiff to prove a further element, in order to protect the employer from unwarranted liability for the discriminatory acts of its non-supervisor employees. “[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., 133 S. Ct. 2434, 2439 (2013).35 Respondeat superior liability for the acts of non-supervisory employees exists only where "the defendant knew or should have known of the harassment and failed to take prompt remedial action." Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990).36 In a case where a plaintiff suffered “harassment by [non-supervisory] co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways,” the Supreme Court has stated that “the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent.” Vance, 133 S. Ct. at 2451. See also Kunin v. Sears Roebuck and Co., 175 F.3d 289, 294 (3d Cir. 1999):
[T]here can be constructive notice in two situations: where an employee provides management level personnel with enough information to raise a probability of sexual harassment in the mind of a reasonable employer, or where the harassment is so pervasive and open that a reasonable employer would have had to be aware of it. We believe that these standards strike the correct balance between protecting the rights of the employee and the employer by faulting the employer for turning a blind eye to overt signs of harassment but not requiring it to attain a level of omniscience, in the absence of actual notice, about all misconduct that may occur in the workplace. The court of appeals has drawn upon agency principles for guidance on the definition of “management level” personnel:
[A]n employee's knowledge of allegations of coworker sexual harassment may typically be imputed to the employer in two circumstances: first, where the employee is sufficiently senior in the employer's governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee's general managerial duties. In this case, the employee usually has the authority to act on behalf of the employer to stop the harassment, for example, by disciplining employees or by changing their employment status or work assignments....

Second, an employee's knowledge of sexual harassment will be imputed to the employer where the employee is specifically employed to deal with sexual harassment. Typically such an employee will be part of the employer's human resources, personnel, or employee relations group or department. Often an employer will designate a human resources manager as a point person for receiving complaints of harassment. In this circumstance, employee knowledge is imputed to the employer based on the specific mandate from the employer to respond to and report on sexual harassment.
Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 107-08 (3d Cir. 2009).

Characteristics of a Hostile Work Environment

In sexual harassment cases, examples of conduct warranting a finding of a hostile work environment include verbal abuse of a sexual nature; graphic verbal commentaries about an individual's body, sexual prowess, or sexual deficiencies; sexually degrading or vulgar words to describe an individual; pinching, groping, and fondling; suggestive, insulting, or obscene comments or gestures; the display in the workplace of sexually suggestive objects, pictures, posters or cartoons; asking questions about sexual conduct; and unwelcome sexual advances. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) (discriminatory intimidation, ridicule and insult); Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 60-61 (1986) (repeated demands for sexual favors, fondling, following plaintiff into women's restroom, and supervisor's exposing himself). Instruction 5.2.1 provides a full instruction if the court wishes to provide guidance on what is a hostile work environment.

The Third Circuit has described the standards for a hostile work environment claim, as applied to sex discrimination, in Weston v. Pennsylvania, 251 F.3d 420, 425-426 (3d Cir. 2001):
Hostile work environment harassment occurs when unwelcome sexual conduct unreasonably interferes with a person's performance or creates an intimidating, hostile, or offensive working environment.... In order to be actionable, the harassment must be so severe or pervasive that it alters the conditions of the victim’s employment and creates an abusive environment. Spain v. Gallegos, 26 F.3d 439, 446-47 (3d Cir.1994). To judge whether the environment was hostile under this standard, one must “look[] at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 215 (3d Cir. 2017) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (citation and internal quotation marks omitted)).

Title VII protects only against harassment based on discrimination against a protected class. It is not “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998). “Many may suffer severe harassment at work, but if the reason for that harassment is one that is not prescribed by Title VII, it follows that Title VII provides no relief.” Jensen v. Potter, 435 F.3d 444, 447 (3d Cir. 2006).

Severe or Pervasive Activity

The terms “severe or pervasive” set forth in the instruction are in accord with Supreme Court case law and provide for alternative possibilities for finding harassment. See Jensen v. Potter, 435 F.3d 444, 447, n.3 (3d Cir. 2006) (“The disjunctive phrasing means that ‘severity’ and ‘pervasiveness’ are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive.”) (quoting 2 C.Sullivan et. al., Employment Discrimination Law 455 (3d ed. 2002). See, e.g., Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 215 (3d Cir. 2017) (finding evidence that met the “severe” test where plaintiff alleged that her supervisor “expected [her] to give sexual favors in exchange for work, touched [her] against her wishes, made sexual comments to her, and exposed himself to her”).

Objective and Subjective Components

The Supreme Court in Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), explained that a hostile work environment claim has both objective and subjective components. A hostile environment must be “one that a reasonable person would find hostile and abusive, and one that the victim in fact did perceive to be so.” The instruction accordingly sets forth both objective and subjective components.

Affirmative Defense Where Constructive Discharge Is Not Based on an Official Act

In Pennsylvania State Police v. Suders, 542 U.S. 129, 148-52 (2004), the Court considered the relationship between constructive discharge brought about by supervisor harassment and the affirmative defense articulated in Ellerth and Faragher. The Court concluded that “an employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor's official act precipitates the constructive discharge; absent such a ‘tangible employment action,’ however, the defense is available to the employer whose supervisors are charged with harassment.” The Court reasoned as follows:
[W]hen an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold, calls for extension of the affirmative defense to the employer. As those leading decisions indicate, official directions and declarations are the acts most likely to be brought home to the employer, the measures over which the employer can exercise greatest control. See Ellerth, 524 U.S., at 762. Absent “an official act of the enterprise,” ibid., as the last straw, the employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force. And as Ellerth and Faragher further point out, an official act reflected in company records--a demotion or a reduction in compensation, for example--shows "beyond question" that the supervisor has used his managerial or controlling position to the employee's disadvantage. See Ellerth, 524 U.S., at 760. Absent such an official act, the extent to which the supervisor's misconduct has been aided by the agency relation... is less certain. That uncertainty, our precedent establishes... justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable.

...

Following Ellerth and Faragher, the plaintiff who alleges no tangible employment action has the duty to mitigate harm, but the defendant bears the burden to allege and prove that the plaintiff failed in that regard. The plaintiff might elect to allege facts relevant to mitigation in her pleading or to present those facts in her case in chief, but she would do so in anticipation of the employer's affirmative defense, not as a legal requirement.
Hostile Work Environment That Precedes the Plaintiff’s Employment
The instruction refers to harassing “conduct” that “was motivated by the fact that [plaintiff] is a [membership in a protected class].” This language is broad enough to cover the situation where the plaintiff is the first member of a protected class to enter the work environment, and the working conditions pre-existed the plaintiff’s employment. In this situation, the “conduct” is the refusal to change an environment that is hostile to members of the plaintiff’s class. The judge may wish to modify the instruction so that it refers specifically to the failure to correct a pre-existing environment. Harassment as Retaliation for Protected Activity

In Jensen v. Potter, 435 F.3d 444, 446 (3d Cir. 2006), the court held that the retaliation provision of Title VII “can be offended by harassment that is severe or pervasive enough to create a hostile work environment.” The Jensen court also declared that “our usual hostile work environment framework applies equally to Jensen’s claim of retaliatory harassment.” But subsequently the Supreme Court in Burlington N. & S.F. Ry. Co. v. White, 548 U.S. 53, 68 (2006), set forth a legal standard for determining retaliation that appears to be less rigorous than the standard for determining a hostile work environment. The Court in White declared that a plaintiff has a cause of action for retaliation under Title VII if the employer’s actions in response to protected activity “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” After White, the Title VII retaliation provision can be offended by any activity of the employer — whether harassment or some other action — that satisfies the White standard. See Instruction 5.1.7 for a general instruction on retaliation in Title VII actions.

Back Pay

In Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 (3d Cir. 2006), the court held that an ADA plaintiff cannot receive back pay in the absence of a constructive discharge. “Put simply, if a hostile work environment does not rise to the level where one is forced to abandon the job, loss of pay is not an issue.” As ADA damages are coextensive with Title VII damages — see the Comment to Instruction 9.4.1 — the ruling from Spencer appears to be applicable to Title VII hostile work environment cases. Thus, back pay will not be available in an action in which Instructions 5.1.5 is given, because the plaintiff has not raised a jury question on a tangible employment action.

(Last Updated July 2019)

Footnotes

32 For a case finding a jury question as to the existence of a tangible employment action, see Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 219 (3d Cir. 2017) (holding that “[a] reasonable juror could conclude that Marshall gave Moody [work] hours to entice her to accede to his sexual demands and then reduced her hours after she rejected him”).
33 Compare Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 329 (3d Cir. 2015) (holding that the employer exercised reasonable care where it “took several steps in response to [the plaintiff’s] allegations of harassment [by her supervisor]: it conducted an investigation, made findings, developed a ‘plan of action,’ required [the supervisor] to attend a counseling session, and gave him a demerit on his evaluation”); id. (stating that “[a]lthough it appears [the supervisor] never received training on [the employer’s] sexual harassment policy until after [the plaintiff] complained, [the plaintiff] identifies no authority showing that this precludes [the employer] from asserting the Faragher-Ellerth defense”), with Minarsky v. Susquehanna Cty., 895 F.3d 303, 312 (3d Cir. 2018) (finding a jury question that precluded summary judgment on the first element of the Faragher-Ellerth defense where – though the County had provided plaintiff with its anti-harassment policy, had twice reprimanded her supervisor for conduct toward others, and ultimately fired the supervisor – there was evidence that “County officials were faced with indicators that [the supervisor’s] behavior formed a pattern of conduct, as opposed to mere stray incidents, yet they seemingly turned a blind eye toward [his] harassment”).
34 Compare Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 329 (3d Cir. 2015) (finding an unreasonable failure by the employee where “[d]espite 10 years of alleged harassment [by her supervisor],... she never made a complaint until [the supervisor] accused her of timesheet fraud, despite the fact that she knew that the [employer’s] EEO Office fielded such complaints”), with Minarsky v. Susquehanna Cty., 895 F.3d 303, 314 (3d Cir. 2018) (“If a plaintiff’s genuinely held, subjective belief of potential retaliation from reporting her harassment appears to be well-founded, and a jury could find that this belief is objectively reasonable, the trial court should not find that the defendant has proven the second Faragher-Ellerth element as a matter of law. Instead, the court should leave the issue for the jury to determine at trial.”); id. at 315 n.16 (“The trial judge can instruct the jury that a plaintiff’s fears must be specific, not generalized, in order to defeat the Faragher-Ellerth defense.”).
35 Applying Vance, the panel majority in Moody v. Atlantic City Board of Education cited multiple factors in holding that a custodial foreman was the plaintiff’s supervisor: [T]he record here supports the conclusion that Marshall was Moody’s supervisor because (a) the Board empowered him as the custodial foreman to select from the list of substitute custodians who could actually work at New York Avenue School;… (b) the Board conceded that while Moody was on school premises, Marshall served in a supervisory role; (c) the record identifies no other person who was present full time or even sporadically on the school’s premises, or anywhere for that matter, who served as Moody’s supervisor; and (d) since Moody’s primary benefit from her employment was hourly compensation, and since Marshall controlled 70% of her hours, his decision to assign or withhold hours significantly affected her pay. Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 217 (3d Cir. 2017).
36 “[E]mployer liability for co-worker harassment exists only if the employer failed to provide a reasonable avenue for complaint or, alternatively, if the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.” Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 105 (3d Cir. 2009). In In re Tribune Media Co., 902 F.3d 384 (3d Cir. 2018), the Court of Appeals found insufficient evidence “that the station had actual or constructive knowledge of” racial animus on the part of the claimant’s co-worker at the time of the altercation between the two men. See id. at 400-01 (reasoning that statements by both supervisory and non-supervisory employees indicated the co-worker “had a ‘problem’” but did not specifically point to “racial animosity”; a 1993 incident “involved disputed accusations of racial bias [by the co-worker] and occurred 15 years before” the events in suit; and the co-worker’s self-declared nickname, “the Nazi,” may not have been known to management). Even if the employer learned of racial animus on the co-worker’s part when investigating the altercation, the Court of Appeals held, the employer took “prompt and appropriate remedial action” by firing the co-worker. See id. at 401.

5 PJI 1.6 | TITLE VII | DISPARATE IMPACT

No Instruction
COMMENT Distinction Between Disparate Impact and Disparate Treatment; Elements of Disparate Treatment Claim

The instructions provided in Chapter 5 focus on disparate treatment claims under Title VII – i.e., on claims in which a central question is whether the employer had an intent to discriminate. Title VII claims can alternatively be brought under a disparate impact theory, in which event the plaintiff need not show discriminatory intent. In a disparate impact case, the plaintiff must first present a prima facie case by showing “that application of a facially neutral standard has resulted in a significantly discriminatory hiring pattern.” Meditz v. City of Newark, 658 F.3d 364, 370 (3d Cir. 2011) (quoting NAACP v. Harrison, 940 F.2d 792, 798 (3d Cir. 1991) (citing Dothard v. Rawlinson, 433 U.S. 321, 329 (1977))). If the plaintiff does so, “the defendant can overcome the showing of disparate impact by proving a ‘manifest relationship’ between the policy and job performance.” El v. SEPTA, 479 F.3d 232, 239 (3d Cir. 2007) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)); see also 42 U.S.C. § 2000e-2(k) (addressing burdens of proof in disparate impact cases); NAACP v. North Hudson Reg’l Fire & Rescue, 665 F.3d 464, 477, 482 (3d Cir. 2011) (discussing and applying business-necessity defense under Section 2000e-2(k)). Even if the defendant proves this business necessity defense, “the plaintiff can overcome it by showing that an alternative policy exists that would serve the employer's legitimate goals as well as the challenged policy with less of a discriminatory effect.” El, 479 F.3d at 239 n.9.

No instruction is provided on disparate impact claims, because a right to jury trial is not provided under Title VII for such claims. The basic remedies provision of Title VII, 42 U.S.C. § 1981a(a)(1), provides as follows:
In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5 [or 2000e-16]) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3 [or 2000e-16]), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U.S.C. 1981), the complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964 [42 USCS § 2000e-5(g)], from the respondent. 42 U.S.C. § 1981a(a)(1) (emphasis added). See also Seventh Circuit Pattern Jury Instructions 3.08 (no instruction provided for disparate impact claims under Title VII); Pollard v. Wawa Food Market, 366 F. Supp. 2d 247, 254 (E.D. Pa. 2005) (“Because Pollard proceeds under a disparate impact theory, and not under a theory of intentional discrimination, if successful on her Title VII claim she would be entitled only to equitable relief. 42 U.S.C. §1981a(a)(1). She therefore is not entitled to a jury trial on that claim.”).

In Smith v. City of Jackson, 544 U.S. 228 (2005), the Supreme Court held that disparate impact claims are cognizable under the Age Discrimination in Employment Act. The ADEA provides a right to jury trial in such claims. See 29 U.S.C. § 626(c)(2) ("[A] person shall be entitled to a trial by jury of any issue of fact in any [ADEA] action... regardless of whether equitable relief is sought by any party in such action.”). Where an ADEA disparate impact claim is tried together with a Title VII disparate impact claim, the parties or the court may decide to refer the Title VII claim to the jury. In that case, the instruction provided for ADEA disparate impact claims (see Instruction 8.1.5) can be modified to apply to the Title VII claim. Care must be taken, however, to instruct separately on the Title VII disparate impact claim, as the substantive standards of recovery under Title VII in disparate impact cases are broader than those applicable to the ADEA. See the Comment to Instruction 8.1.5 for a more complete discussion.

(Last Updated July 2019)

5 PJI 1.7 | TITLE VII | RETALIATION

[Plaintiff] claims that [defendant] discriminated against [him/her] because of [plaintiff’s] [describe protected activity].37

To prevail on this claim, [plaintiff] must prove all of the following by a preponderance of the evidence:
First: [Plaintiff] [describe activity protected by Title VII].

Second: [Plaintiff] was subjected to a materially adverse action at the time, or after, the protected conduct took place.

Third: There was a causal connection between [describe challenged activity] and [plaintiff’s] [describe protected activity].


Concerning the first element, [plaintiff] need not prove the merits of [his/her] [describe plaintiff’s activity], but only that [he/she] was acting under a reasonable,38 good faith belief that [plaintiff’s] [or someone else’s] right to be free from discrimination on the basis of [protected status] was violated.

Concerning the second element, the term “materially adverse” means that [plaintiff] must show [describe alleged retaliatory activity] was serious enough that it well might have discouraged a reasonable worker from [describe protected activity]. [The activity need not be related to the workplace or to [plaintiff’s] employment.]

Concerning the third element, that of causal connection, that connection may be shown in many ways. For example, you may or may not find that there is a sufficient connection through timing, that is [employer’s] action followed shortly after [employer] became aware of [plaintiff’s] [describe activity]. Causation is, however, not necessarily ruled out by a more extended passage of time. Causation may or may not be proven by antagonism shown toward [plaintiff] or a change in demeanor toward [plaintiff].

Ultimately, you must decide whether [plaintiff’s] [protected activity] had a determinative effect on [describe alleged retaliatory activity]. “Determinative effect” means that if not for [plaintiff's] [protected activity], [describe alleged retaliatory activity] would not have occurred.

COMMENT Title VII protects employees and former employees who attempt to exercise the rights guaranteed by the Act against retaliation by employers. 42 U.S.C. § 2000e-3(a) is the anti-retaliation provision of Title VII,39 and it provides as follows:
§ 2000e-3. Other unlawful employment practices

(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings. It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
Protected Activities

Activities protected from retaliation under Title VII include the following: 1) opposing any practice made unlawful by Title VII;40 2) making a charge of employment discrimination;41 3) testifying, assisting or participating in any manner in an investigation, proceeding or hearing under Title VII. Id.

Informal complaints and protests can constitute protected activity under the “opposition” clause of 42 U.S.C. § 2000e-3(a). “Opposition to discrimination can take the form of informal protests of discriminatory employment practices, including making complaints to management. To determine if retaliation plaintiffs sufficiently opposed discrimination, we look to the message being conveyed rather than the means of conveyance.” Moore v. City of Philadelphia, 461 F.3d 331, 343 (3d Cir. 2006) (citations omitted).42 In Crawford v. Metropolitan Gov’t of Nashville and Davidson Cty., Tennessee, 555 U.S. 271, 277 (2009), the Court held that the antiretaliation provision’s “opposition” clause does not require the employee to initiate a complaint. The provision also protects an employee who speaks out about discrimination by answering questions during an employer’s internal investigation. The Court declared that there is “no reason to doubt that a person can ‘oppose’ by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.” See also Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (advocating salary increases for women employees, to compensate them equally with males, was protected activity).

“[A] plaintiff need not prove the merits of the underlying discrimination complaint, but only that ‘he was acting under a good faith, reasonable belief that a violation existed.’” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (quoting Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993) (quoting Sumner v. United States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990)), overruled on other grounds by Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995)). The good-faith-and-reasonable-belief test clearly applies to actions under the “opposition” clause of Section 2000e-3(a). There is some authority for the proposition that a less demanding test applies to actions under the “participation” clause of Section 2000e-3(a) – i.e., the clause that refers to a person who “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter,” 42 U.S.C. § 2000e-3(a). Thus, in Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001), after holding plaintiff’s conduct unprotected by the opposition clause because the plaintiff could not have reasonably believed the challenged employer actions to be illegal, the Supreme Court went on to consider plaintiff’s participation claim based on the same employer action. Third Circuit authority, however, is divided. After noting authorities stating that “the ‘participation clause’... offers much broader protection to Title VII employees than does the ‘opposition clause,’” the Court of Appeals in Slagle v. County of Clarion, 435 F.3d 262 (3d Cir. 2006), stated that for filing a charge to constitute protected activity, “[a]ll that is required is that plaintiff allege in the charge that his or her employer violated Title VII by discriminating against him or her on the basis of race, color, religion, sex, or national origin, in any manner.” Slagle, 435 F.3d at 266, 268. (The plaintiff in Slagle failed to surmount even this “low bar.” Id.) Later that same year, however, a different panel of the Court of Appeals indicated that the good-faith-and-reasonable-belief test applies to both opposition and participation claims: “Whether the employee opposes, or participates in a proceeding against, the employer’s activity, the employee must hold an objectively reasonable belief, in good faith, that the activity they oppose is unlawful under Title VII.” Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006). (The facts of Moore featured adverse actions both pre-dating and post-dating the filing of the EEOC charge, see id. at 340, 345-48.)

In accord with instructions from other circuits, Instruction 5.1.7 directs the jury to determine both the good faith and the reasonableness of the plaintiff’s belief that employment discrimination had occurred. See Fifth Circuit Committee Note to Instruction 11.6.1 (Title VII retaliation); Seventh Circuit Committee Comment to Instruction 3.02 (retaliation instruction for use in Title VII, § 1981, and ADEA cases); Eleventh Circuit Instruction 4.21 (Section 1981 retaliation); Eleventh Circuit Instruction 4.22 (retaliation claims under Title VII, ADEA, ADA, and FLSA); see also Eighth Circuit Instruction 10.41 (retaliation claim (regarding opposition to harassment or discrimination) under Title VII and other federal discrimination laws; instruction uses phrase “reasonably believed”); id. Notes on Use, Note 5 (using phrase “reasonably and in good faith believe”); compare Ninth Circuit Instruction & Comment 10.3 (Title VII retaliation) (discussing reasonableness requirement in the comment but not in the model instruction). In cases where the protected nature of the plaintiff’s activity is not in dispute, this portion of the instruction can be modified and the court can simply instruct the jury that specified actions by the plaintiff constituted protected activity.

Standard for Actionable Retaliation

The Supreme Court in Burlington N. & S.F. Ry. v. White, 548 U.S. 53, 68 (2006), held that a cause of action for retaliation under Section 2000e-3(a) lies whenever the employer responds to protected activity in such a way “that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (citations omitted).43 The Court elaborated on this standard in the following passage:
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code for the American workplace." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1996) (noting that "courts have held that personality conflicts at work that generate antipathy" and "'snubbing' by supervisors and co-workers" are not actionable under § 704(a)). The anti-retaliation provision seeks to prevent employer interference with "unfettered access" to Title VII's remedial mechanisms. It does so by prohibiting employer actions that are likely "to deter victims of discrimination from complaining to the EEOC," the courts, and their employers. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence. See 2 EEOC 1998 Manual § 8, p. 8-13.

We refer to reactions of a reasonable employee because we believe that the provision's standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings. We have emphasized the need for objective standards in other Title VII contexts, and those same concerns animate our decision here. See, e.g., [Pennsylvania State Police v.] Suders, 542 U.S., at 141, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (constructive discharge doctrine); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (hostile work environment doctrine).

We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.... A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an act that would be immaterial in some situations is material in others.

Finally, we note that... the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff's position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.
548 U.S. at 68 (some citations omitted). The instruction follows the guidelines of the Supreme Court’s decision in White. For applications of the White standard, see Moore v. City of Philadelphia, 461 F.3d 331, 348 (3d Cir. 2006) (finding that a transfer of a police officer from a district where he had earned goodwill and established good relations with the community could constitute actionable retaliation, because it “is the kind of action that might dissuade a police officer from making or supporting a charge of unlawful discrimination within his squad.”); Id. at 352 (aggressive enforcement of sick-check policy “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”); Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 220 (3d Cir. 2017) (holding that plaintiff presented evidence that would justify a finding of a materially adverse action where plaintiff’s “working hours declined three-fold in the months following her complaint as compared to the months preceding her complaint”).

In Komis v. Sec'y of United States Dep't of Labor, 918 F.3d 289 (3d Cir. 2019), the plaintiff (a former federal employee) brought a claim for retaliatory hostile work environment and the jury charge included the “severe or pervasive” standard drawn from Title VII hostile-environment law. The plaintiff contended that “the... instruction that a retaliatory hostile work environment claim requires proof of ‘conduct... so severe or pervasive that a reasonable person in Ms. Komis’[s] position would find her work environment hostile or abusive[’]... was erroneous because Burlington Northern did away with the ‘severe or pervasive’ requirement for retaliation claims — including for a retaliatory hostile work environment.” Komis, 918 F.3d at 297. The Court of Appeals, applying a harmless-error test, declined to resolve that question. See id. at 299 (“Whatever the room in magnitude of harm between conduct severe or pervasive such that it affects the terms and conditions of employment and materially adverse conduct that would dissuade a reasonable worker from invoking her antidiscrimination rights, Komis has not shown how it might change the outcome in her case.”).

No Requirement That Retaliation Be Job-Related To Be Actionable

The Supreme Court in Burlington N. & S.F. Ry. v. White, 548 U.S. 53, 61-62 (2006), held that retaliation need not be job-related to be actionable under Section 2000e-3(a). In doing so, the Court rejected authority from the Third Circuit (and others) requiring that the plaintiff suffer an adverse employment action in order