[Plaintiff] claims that [Defendant] discriminated against [Plaintiff] by [discharging [him/her] from employment/denying [him/her] a promotion] because [he/she] [was a member of/applied to be a member of/performed service in/applied to perform service in/had an obligation to perform service in] a uniformed service.
[Defendant] denies [Plaintiff]’s claim and asserts that [describe the defendant’s defense].
To succeed on [his/her] claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:
Second: [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion]; and
Third: [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service was a motivating factor that prompted [Defendant] to take that action.
[Name of Armed Forces Branch/Army National Guard/Air National Guard] is a “uniformed service.”
If you find that [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion], you must decide whether plaintiff’s [membership/application for membership/service/application for service/obligation for service] was a motivating factor in [Defendant]’s decision.
To prove that [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service was a “motivating factor” in [Defendant]’s decision, [Plaintiff] does not have to prove that [his/her] [membership/application for membership/service/application for service/obligation for service] in a uniformed service was the only reason that [Defendant] [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion]. It is enough if [Plaintiff] proves that [his/her] [membership/application for membership/service/application for service/obligation for service] in a uniformed service influenced [Defendant]’s decision. If [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service made a difference in [Defendant]’s decision, you may find that it was a motivating factor in the decision.
[Defendant] claims that [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service was not a motivating factor in [his/her/its] decision and that [he/she/it] [discharged/did not promote] [Plaintiff] for [another reason/other reasons]. An employer may not discriminate against an employee because of the employee’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service. But an employer may [discharge/decline to promote] an employee for any other reason, good or bad, fair or unfair. If you believe [Defendant]’s reason[s] for [his/her/its] decision [to discharge/not to promote] [Plaintiff] and find that [his/her/its] decision was not motivated by [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service, you must not second guess [Defendant]’s decision, and you must not substitute your own judgment for [Defendant]’s judgment – even if you do not agree with it.
[Pretext (optional, see annotations): As I have explained, [Plaintiff] has the burden to prove that [his/her] [membership/application for membership/service/application for service/obligation for service] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff]. I have explained to you that evidence can be direct or circumstantial. To decide whether [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] was a motivating factor in [Defendant]’s decision [to discharge/not to promote] [Plaintiff], you may consider the circumstances of [Defendant]’s decision. For example, you may consider whether you believe the reason[s] that [Defendant] gave for the decision. If you do not believe the reason[s] that [he/she/it] gave for the decision, you may consider whether the reason[s] [was/were] so unbelievable that [it was/they were] a cover-up to hide the true discriminatory reason[s] for the decision.]
[Including Affirmative Defense: If you find in [Plaintiff]’s favor for each element that [he/she] must prove, you must decide whether [Defendant] has shown by a preponderance of the evidence that [he/she/it] would have [discharged [Plaintiff] from employment/denied [Plaintiff] a promotion] even if [Defendant] had not taken [Plaintiff]’s [membership/application for membership/service/application for service/obligation for service] in a uniformed service into account. If you find that [Plaintiff] [would have been dismissed/would not have been promoted] for [a] reason[s] other than [his/her] [membership/application for membership/service/application for service/obligation for service] in a uniformed service, you must make that finding in your verdict.
If you find for [Plaintiff] and against [Defendant] on this defense, you must consider [Plaintiff]’s compensatory damages.]
[Without Affirmative Defense: If you find in [Plaintiff]’s favor for each element that [he/she] must prove, you must decide the issue of [his/her] compensatory damages.]
When considering the issue of [Plaintiff]’s compensatory damages, you should determine what amount, if any, has been proven by [Plaintiff] by a preponderance of the evidence as full, just and reasonable compensation for all of [Plaintiff]’s damages as a result of the [discharge/denied promotion], no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize [Defendant]. Also, compensatory damages must not be based on speculation or guesswork.
To the extent you find that [Plaintiff] proved damages by a preponderance of the evidence, you must consider only net lost wages and benefits from the date of the [discharge/denial of promotion] to the date of your verdict.
To determine the amount of [Plaintiff]’s net lost wages and benefits, you should consider evidence of the actual wages [he/she] lost and the monetary value of any benefits [he/she] lost.
[Mitigation of Damages: You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to “mitigate” those damages. For purposes of this case, the duty to mitigate damages requires [Plaintiff] to be reasonably diligent in seeking substantially equivalent employment to the position [he] [she] held with [Defendant]. To prove that [Plaintiff] failed to mitigate damages, [Defendant] must prove by a preponderance of the evidence that:
(2) [Plaintiff] did not make reasonably diligent efforts to obtain it.
If you find that [Defendant] proved by a preponderance of the evidence that [Plaintiff] failed to mitigate damages, then you should reduce the amount of [Plaintiff]’s damages by the amount that could have been reasonably realized if [Plaintiff] had taken advantage of an opportunity for substantially equivalent employment.]
[Willful Violation: If you find in [Plaintiff]’s favor and award [him/her] compensatory damages, you must decide whether [Defendant] willfully violated the law. If [Defendant] knew that [his/her/its] employment decision violated the law, or acted in reckless disregard of that fact, then [his/her/its] conduct was willful. If [Defendant] did not know, or knew only that the law was potentially applicable and did not act in reckless disregard as to whether [his/her/its] conduct was prohibited by the law, then [Defendant]’s conduct was not willful.]
