[Defendant] denies [Plaintiff]’s claims and asserts that [describe the defendant’s defense].
Under the First Amendment to the Constitution of the United States, a public employee has a right to freedom of speech on matters of public concern. It is unlawful for a public employer to take action against a public employee because the employee exercises [his/her] First Amendment rights by speaking on a matter of public concern or because the employer mistakenly believes that the employee did so.
To succeed on [his/her] claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:
Second: [[Plaintiff] [describe protected speech or conduct]]/[[Defendant] mistakenly believed that [Plaintiff] [describe protected speech or conduct]];
Third: [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion];
Fourth: [[Plaintiff]’s [describe protected speech or conduct]]/[[Defendant]’s [describe mistaken belief]] was a motivating factor in [Defendant]’s decision [to discharge [Plaintiff]/not to promote [Plaintiff]]; and
Fifth: [Plaintiff] suffered damages because of [Defendant]’s actions.
[To be used when the parties stipulate that the defendants acted “under color” of state law: The parties have agreed that [Defendant] acted “under color” of state law so you should accept that as a true and proven fact.]
[To be used when the parties dispute whether the defendants acted “under color” of state law: For the first element, you must decide whether [Defendant] acted “under color” of state law. A government official acts “under color” of law when [he/she] acts within the limits of lawful authority. A government official also acts under color of law when [he/she] claims to be performing an official duty but [his/her] acts are outside the limits of lawful authority and abusive in manner, or [he/she] acts in a way that misuses [his/her] power and is able to do so only because [he/she] is an official.]
For the second element, if you find that [Plaintiff] [describe protected speech or conduct], then you have found that [he/she] engaged in “protected speech.”
[To be used when it is alleged that the public employer mistakenly believed that employee engaged in protected activity: For the second element, if you find that [Defendant] mistakenly believed that [Employee] engaged in [describe protected speech or activity], then you have found the second element to be met, whether or not [Plaintiff] actually engaged in such [speech/conduct].]
For the third element, you must decide whether [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion].
For the fourth element, you must decide whether [Plaintiff]’s protected speech / [Defendant]’s mistaken belief was a “motivating factor” in [Defendant]’s decision. To prove that [[Plaintiff]’s protected speech] / [[Defendant]’s mistaken belief] was a motivating factor in [Defendant]’s decision, [Plaintiff] does not have to prove that [[his/her] protected speech] / [[Defendant]’s mistaken belief] was the only reason for [Defendant]’s actions. It is enough if [[Plaintiff] proves that [his/her] protected speech] / [[Defendant]’s mistaken belief] influenced [Defendant]’s decision. If [[Plaintiff]’s protected speech] / [[Defendant]’s mistaken belief] made a difference in [Defendant]’s decision, you may find that it was a motivating factor in the decision.
[Defendant] claims that [[Plaintiff]’s protected speech]/[[Defendant]’s mistaken belief] was not a motivating factor in [Defendant]’s decision and that [he/she/it] [discharged/did not promote] [Plaintiff] for [another reason/other reasons]. A public employer may not take action against a public employee because the employee exercised protected First Amendment rights or because the public employer believed that the employee did so. But a public employer may [discharge/decline to promote] a public employee for any other reason, good or bad, fair or unfair. If you believe [Defendant]’s reason[s] for [his/her/its] decision [to discharge/not to promote] [Plaintiff], and you find that [his/her/its] decision was not motivated by [[Plaintiff]’s protected speech] / [[Defendant]’s mistaken belief], you must not second guess [his/her/its] decision and you must not substitute your own judgment for [Defendant]’s judgment – even if you do not agree with it.
[Pretext (optional, see annotations): As I have explained, [Plaintiff] has the burden to prove that [[his/her] protected speech]/[[Defendant]’s mistaken belief that [Plaintiff] engaged in protected speech] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff]. I have explained to you that evidence can be direct or circumstantial. To decide whether [[Plaintiff]’s protected speech] / [[Defendant]’s mistaken belief] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff], you may consider the circumstances of [Defendant]’s decision. For example, you may consider whether you believe the reason[s] [Defendant] gave for the decision. If you do not believe the reason[s] [he/she/it] gave for the decision, you may consider whether the reason[s] [was/were] so unbelievable that [it was/they were] a coverup to hide the true unconstitutional reasons for the decision.]
If you find that [[Plaintiff] [describe protected speech or conduct]]/[[Defendant] mistakenly believed that [named of plaintiff] [describe protected speech or conduct]] and that this [protected speech] / belief was a “motivating” factor in [Defendant]’s decision to [discharge [Plaintiff] from employment/deny [Plaintiff] a promotion], you must decide whether [Plaintiff] suffered damages as a result. If the damages would not have existed except for the [discharge/denied promotion], then you may find that [Plaintiff] suffered those damages because of the [discharge/denied promotion].
[Including Affirmative Defense (if applicable, see annotations): If you find in [Plaintiff]’s favor for each fact [he/she] must prove, you must decide whether [Defendant] has shown by a preponderance of the evidence that [he/she/it] would have made the same decision even if [he/she/it] had not taken [[Plaintiff]’s protected activity] / [[his/her/its] mistaken belief that [named of plaintiff] [describe protected speech or conduct]] into account. If you find that [Plaintiff] would [have been dismissed/not have been promoted] for reasons other than [[his/her] protected speech] / [[Defendant]’s mistaken belief that [named of plaintiff] [describe protected speech or conduct]], your verdict should be for [Defendant].
If you find for [Plaintiff] and against [Defendant] on this defense, you must consider [Plaintiff]’s compensatory damages.]
[Without Affirmative Defense: If you find in [Plaintiff]’s favor for each fact [he/she] must prove, you must consider [Plaintiff]’s compensatory damages.]
When considering the issue of [Plaintiff]’s compensatory damages, you should determine what amount, if any, has been proven by [Plaintiff] by a preponderance of the evidence as full, just and reasonable compensation for all of [Plaintiff]’s damages as a result of the [discharge/denied promotion], no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize [Defendant]. Also, compensatory damages must not be based on speculation or guesswork. You should consider the following elements of damage, to the extent you find that [Plaintiff] has proved them by a preponderance of the evidence, and no others:
(b) Emotional pain and mental anguish.
To determine whether and how much [Plaintiff] should recover for emotional pain and mental anguish, you may consider both the mental and physical aspects of injury – tangible and intangible. [Plaintiff] does not have to introduce evidence of a monetary value for intangible things like mental anguish. You will determine what amount fairly compensates [him/her] for [his/her] claim. There is no exact standard to apply, but the award should be fair in light of the evidence.
[Mitigation of Damages: You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to “mitigate” those damages. For purposes of this case, the duty to mitigate damages requires [Plaintiff] to be reasonably diligent in seeking substantially equivalent employment to the position [he] [she] held with [Defendant]. To prove that [Plaintiff] failed to mitigate damages, [Defendant] must prove by a preponderance of the evidence that: (1) work comparable to the position [Plaintiff] held with [Defendant] was available, and (2) [Plaintiff] did not make reasonably diligent efforts to obtain it. If, however, [Defendant] shows that [Plaintiff] did not make reasonable efforts to obtain any work, then [Defendant] does not have to prove that comparable work was available.
If you find that [Defendant] proved by a preponderance of the evidence that [Plaintiff] failed to mitigate damages, then you should reduce the amount of [Plaintiff]’s damages by the amount that could have been reasonably realized if [Plaintiff] had taken advantage of an opportunity for substantially equivalent employment.]
[Punitive Damages: To be used only for individual-capacity claims against individual defendants: [Plaintiff] also claims that [name of individual defendant]’s acts were done with malice or reckless indifference to [Plaintiff]’s federally protected rights, which would entitle [him/her] to punitive damages in addition to compensatory damages. [Plaintiff] must prove by a preponderance of the evidence that [he/she] is entitled to punitive damages. You will only reach the issue of punitive damages if you find that [Plaintiff] has proved the elements of [his/her] claim against [name of individual defendant], and you award [Plaintiff] compensatory damages. You may not assess punitive damages against [public employer].
If you find for [Plaintiff] and find that [Defendant] acted with malice or reckless indifference to [Plaintiff]’s federally protected rights, the law allows you, in your discretion, to award [Plaintiff] punitive damages as a punishment for [Defendant] and as a deterrent to others.
A person acts with malice if the person’s conduct is motivated by evil intent or motive. A person acts with reckless indifference to the protected federal rights of another person when the person engages in conduct with a callous disregard for whether the conduct violates those protected federal rights.
If you find that punitive damages should be assessed, you may consider the evidence regarding [Defendant]’s financial resources in fixing the amount of such damages. [You also may assess punitive damages against one or more of the individual defendants, and not others, or against more than one individual defendant in different amounts.]]
