Laws that prohibit discrimination in the workplace also prohibit an employer from taking any retaliatory action against an employee because the employee has asserted rights or made complaints under those laws.
An employee may make a discrimination complaint as a means to enforce what [he/she] believed in good faith to be [his/her] lawful rights. So, even if a complaint of discrimination against an employer is later found to be invalid or without merit, the employee cannot be penalized in retaliation for having made such a complaint if you find that the employee made the complaint as a means of seeking to enforce what the employee believed in good faith to be [his/her] lawful rights. To establish “good faith,” however, it is insufficient for [Plaintiff] merely to allege that [his/her] belief in this regard was honest and bona fide; the allegations and the record must also establish that the belief, though perhaps mistaken, was objectively reasonable.
[Plaintiff] claims that [Defendant] [describe adverse employment action] because [Plaintiff] [describe protected activity].
[Defendant] denies [Plaintiff]’s claim and asserts that [describe the defendant’s defense].
To succeed on [his/her] claim, [Plaintiff] must prove each of the following facts by a preponderance of the evidence:
Second: [Defendant] then took an adverse employment action;
Third: [Plaintiff]’s protected activity was a motivating factor that prompted [Defendant] to take the adverse employment action; and
Fourth: [Plaintiff] suffered damages because of the adverse employment action.
For the first element, [Plaintiff] claims that [he/she] engaged in protected activity when [he/she] [describe opposition clause activity]. That action is “protected activity” if it was based on [Plaintiff]’s good-faith, reasonable belief that [Defendant] discriminated against [him/her/another employee] because of [protected trait]. [Plaintiff] had a “good faith” belief if [he/she] honestly believed that [Defendant] discriminated against [him/her/another employee] because of [protected trait]. [Plaintiff] had a “reasonable” belief if a reasonable person would, under the circumstances, believe that [Defendant] discriminated against [him/her/another employee] because of [protected trait]. [Plaintiff] does not have to prove that [Defendant] actually discriminated against [him/her/another employee] because of [protected trait]. But [he/she] must prove that [he/she] had a good-faith, reasonable belief that [Defendant] did so.
For the second element, [Plaintiff] claims that [Defendant] took an adverse employment action against [him/her] when [Defendant] [describe adverse employment action]. You must decide whether [describe adverse employment action] is an adverse employment action.
An “adverse employment action” is any type of action that would have made a reasonable employee reluctant to make or support a charge of discrimination. Put another way, if a reasonable employee would be less likely to complain about or oppose alleged discrimination because [he/she] knew that [Defendant] would [describe adverse employment action], then that action is an adverse employment action. If the employment action would not make it less likely for a reasonable employee to make complaints about or oppose the alleged discrimination, it is not an adverse employment action.
For the third element, if you find that [Plaintiff] engaged in protected activity and that [Defendant] took an adverse employment action against [him/her], you must decide whether [Plaintiff]’s protected activity was a “motivating factor” in the decision.
To prove that protected activity was a motivating factor in [Defendant]’s decision, [Plaintiff] does not have to prove that [his/her] protected activity was the only reason that [Defendant] [describe adverse employment action]. It is enough if [Plaintiff] proves that [his/her] protected activity influenced the decision. If [Plaintiff]’s protected activity made a difference in [Defendant]’s decision, you may find that it was a motivating factor in the decision.
[Defendant] claims that [Plaintiff]’s protected activity was not a motivating factor in the decision and that [he/she] [describe adverse employment action] for [another reason/other reasons]. An employer may not take an adverse action against an employee because of the employee’s protected activity, but an employer may [describe adverse employment action] an employee for any other reason, good or bad, fair or unfair. If you believe [Defendant]’s reason[s] for [his/her/its] decision and you find that [Defendant]’s decision was not motivated by [Plaintiff]’s protected activity, you must not second guess that decision, and you must not substitute your own judgment for [Defendant]’s judgment – even if you do not agree with it.
[Pretext (optional, see annotations): As I have explained, [Plaintiff] has the burden to prove that [his/her] protected activity was a motivating factor in [Defendant]’s decision to [describe adverse employment action]. I have explained to you that evidence can be direct or circumstantial. To decide whether [Plaintiff]’s protected activity was a motivating factor in [Defendant]’s decision to [describe adverse employment action], you may consider the circumstances of [Defendant]’s decision. For example, you may consider whether you believe the reason[s] that [Defendant] gave for the decision. If you do not believe the reason[s] that [he/she/it] gave for the decision, you may consider whether the reason[s] [was/were] so unbelievable that [it was/they were] a cover-up to hide the true retaliatory reasons for the decision.]
[Including Affirmative Defense (if applicable, see annotations): If you find in [Plaintiff]’s favor the first three elements [he/she] must prove, you must decide whether [Defendant] has shown by a preponderance of the evidence that [he/she/it] would have [describe adverse employment action] [Plaintiff] even if [Defendant] had not taken [Plaintiff]’s protected activity into account. If you find that [Plaintiff] would have been [describe adverse employment action] for reasons other than [his/her] protected activity, you must make that finding in your verdict
If you find for [Plaintiff] and against [Defendant] on this defense, you must decide whether [Defendant]’s acts were the proximate cause of damages that [Plaintiff] sustained. Put another way, you must decide, if [Defendant] had not [describe adverse employment action] [Plaintiff], whether these damages would have occurred.]
[Without Affirmative Defense: For the fourth element, you must decide whether [Defendant]’s acts were the proximate cause of damages that [Plaintiff] sustained. Put another way, you must decide, if [Defendant] had not [describe adverse employment action] [Plaintiff], whether these damages would have occurred.]
If you find that [Defendant]’s acts were the proximate cause of damages that [Plaintiff] sustained, you must determine the amount of damages.
[Insert damages instruction for §1981 from Pattern Instruction 4, supra.]
