PATTERN

JURY INSTRUCTIONS
(Civil Cases)
Prepared by the

Committee on Civil Pattern

Jury Instructions

District Judges Association

Fifth Circuit
2020

with revisions through June 2020

For Customer Assistance Call 1-800-328-4880

Mat #42803135
COMMITTEE ON CIVIL PATTERN JURY
INSTRUCTIONS
DISTRICT JUDGES ASSOCIATION
FIFTH CIRCUIT

Judge Sidney A. Fitzwater, Chair

Judge Alan Albright
Judge Debra M. Brown
Judge John W. deGravelles
Judge Terry A. Doughty
Judge Elizabeth Erny Foote
Judge Jeremy D. Kernodle
Judge Mary Ann Vial Lemmon
Chief Judge Lee H. Rosenthal

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 FOREWORD TO 2014 EDITION

In July 2011, the Fifth Circuit District Judges Associa-

tion formed the Pattern Jury Instruction Committee (Civil)
including Judges Lee Rosenthal, Ron Clark, Elizabeth Foote,
Sul Ozerden, Michael P. Mills, Stanwood Duval, Mary Ann
Lemmon, Sarah Vance, Melinda Harmon and Dan Jordan.
The Committee was charged with reviewing the existing
pattern instructions and updating them where necessary.
After an initial review, the Committee determined that
the time had come for a top-to-bottom examination for
substantive accuracy. While many of the existing instruc-
tions remained valid, a significant number no longer
reflected current law. This is no reflection on prior commit-
tees, which did an excellent job drafting prior patterns. The
law is not stagnant; it was time to update. Accordingly, the
2014 edition of the Fifth Circuit Pattern Jury Instructions
(Civil) will represent a substantial overhaul.
The Committee approached this project with a consistent
mantra: present instructions that are as balanced, accurate,
and user friendly as possible. Given the breadth of that
undertaking, outside assistance was essential. And in the
end, nearly one hundred judges, attorneys, law professors,
and law students helped draft, vet, edit, and proofread the
final product. In all, the instructions went through four
rounds of review, each time by a different panel of reviewers.
In every case, the volunteer reviewers were recruited for
their expertise in the chapters they helped produce. In most
cases, the volunteers presided, practiced, or taught within
the Fifth Circuit and possessed hands-on experience apply-
ing this circuit’s standards, though some experts beyond this
circuit were consulted.
Readers will note that the subject areas are not identical
to previous editions. Chapter 6 on Antitrust and Chapter 8
on RICO have been deleted because the Committee concluded
that the existing instructions were no longer trustworthy
and that the issues arose too infrequently to justify revision.
Chapter 9 on Patent Infringement has been deleted because
the Committee learned that practitioners favored other pat-
tern instructions for patent cases. Chapter 14 on statutes of
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 FOREWORD

limitations was also deleted because such statutes generally

involve state-law issues and Louisiana, Mississippi, and
Texas all have variations that were not reflected in the old
pattern instructions. For some of these chapters, the Com-
mittee has suggested other sources. The Committee also
added instructions, including an instruction on electronic
communications during trial and a new section on the Fair
Labor Standards Act.
Those using the new instructions will also observe that
they are heavily footnoted. There is simply no way to draft
an instruction that covers every possible factual case. The
patterns therefore address the most common factual sce-
narios, but the footnotes direct the reader to other potential
issues and authorities. The notes also allow the reader to
review the source to determine whether the instruction
remains current.
Along these same lines, the Committee received a fair
number of suggested instructions from attorneys and profes-
sors that represented novel legal theories. The Committee
did not include these suggestions—though some were
footnoted—concluding that pattern instructions are not the
place to advance the law. Again, the patterns were designed
to cover the most common issues.
This major undertaking lasted more than three years,
and there are many to thank. The Committee offers its
heartfelt appreciation to all who helped produce the 2014
edition, including our law clerks and summer externs.
Special thanks are extended to Professor Lonny Hoffman,
who served as our reporter and devoted countless hours to
the project. His guidance and input were invaluable.

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 TABLE OF CONTENTS

Page
Committee Members Page. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Instruction

1. PRELIMINARY INSTRUCTIONS

1.1 Instructions for Beginning of Trial. . . . . . . . . . . . . . . . . . . . . . . . 1

1.2 Preliminary Instructions to Jury. . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. GENERAL INSTRUCTIONS

2.1 First Recess . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2.2 Stipulated Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.3 Stipulations of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.4 Judicial Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.5 Discontinuance as to Some Parties . . . . . . . . . . . . . . . . . . . . . . 12
2.6 Limiting Instruction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.7 Charts and Summaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.8 Demonstrative Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.9 Witness Not Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.10 Similar Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.11 Impeachment by Witness’s Inconsistent Statements . . 18
2.12 Impeachment by Witness’s Felony Conviction . . . . . . . . . 19
2.13 Deposition Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.14 Transcript of Recorded Conversation. . . . . . . . . . . . . . . . . . . . 21
2.15 Law-Enforcement Officer Testimony . . . . . . . . . . . . . . . . . . . . 22
2.16 Bias—Corporate Party Involved . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.17 Clear and Convincing Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.18 Civil Allen Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

3. JURY CHARGE

3.1 Jury Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

3.2 Burden of Proof: Preponderance of The Evidence . . . . . . . 30
3.3 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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3.4 Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.5 Expert Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.6 No Inference from Filing Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.7 Duty to Deliberate; Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

4. ADMIRALTY

4.1 Seaman Status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

4.2 Vessels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.3 Jones Act—Unseaworthiness—Maintenance and
Cure (Seaman Status Not Contested) . . . . . . . . . . . . . . . . . 42
4.4 Jones Act—Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.5 Unseaworthiness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.6 Causation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
4.7 Contributory Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4.8 Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.9 Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.10 Maintenance and Cure Claims and Their
Relationship to Jones Act and Unseaworthiness
Claims—Punitive Damages for Willful Withholding
of Maintenance and Cure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.11 Section 905(b) Longshore and Harbor Workers’
Compensation Act Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

5. RAILROAD EMPLOYEES

5.1 FELA, 45 U.S.C. §§ 51 and 53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

5.2 Federal Safety Appliance Act, 49 U.S.C. § 20301 et
seq. (2006) (Recodifying 45 U.S.C. §§ 1–16 (1988)) . . . . 70

6. ANTITRUST (15 U.S.C. §§ 1, ET SEQ.)

7. SECURITIES ACT

7.1 Securities Act—(Rule 10b-5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

8. RICO

9. PATENT INFRINGEMENT (35 U.S.C. § 271, ET SEQ.)

10. CIVIL RIGHTS — 42 U.S.C. § 1983

10.1 42 U.S.C. Section 1983 (Unlawful Seizure—

Unlawful Search—Excessive Force) . . . . . . . . . . . . . . . . . . 82
10.2 Under Color of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
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10.3 Qualified Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
10.4 Liability of Supervisor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
10.5 Municipal Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
10.6 First Amendment Retaliation—Public Employees. . . . 100
10.7 Eighth Amendment (Excessive Force)—Convicted
Prisoner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
10.8 Eighth Amendment (Inadequate Medical Care —
Convicted Prisoner) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
10.9 Eighth Amendment (Conditions of Confinement —
Convicted Prisoner), . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
10.10 Fourteenth Amendment (Excessive Force—Pretrial
Detainee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
10.11 Fourteenth Amendment (Inadequate Medical Care/
Conditions of Confinement — Pretrial Detainee),, . . 119
10.12 Fourteenth Amendment (Inadequate Medical Care/
Episodic Acts—Pretrial Detainee),, . . . . . . . . . . . . . . . . . . . 123
10.13 Emotional Distress Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

11. EMPLOYMENT CLAIMS

11.1 Title VII (42 U.S.C. § 2000e-2)—Discrimination

Based on Race, Color, National Origin, Religion, or
Sex (Disparate Treatment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
11.1 Pattern Jury Question, Title VII—Discrimination
Based on Race, Color, National Origin, Religion or
Sex (Disparate Treatment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
11.2 Title VII (42 U.S.C. § 2000E-2)—Supervisor
Harassment Without Tangible Employment Action
(Hostile Work Environment) . . . . . . . . . . . . . . . . . . . . . . . . . . 137
11.2 Pattern Jury Questions, Supervisor Sexual and
Other Harassment without Tangible Employment
Action (Hostile Work Environment) . . . . . . . . . . . . . . . . . . 143
11.3 Title VII (42 U.S.C. § 2000E-2)—Supervisor Sexual
Harassment with Tangible Employment Action
(Quid Pro Quo). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
11.3 Pattern Jury Question, Supervisor Sexual
Harassment with Tangible Employment Action
(Hostile Work Environment—Quid Pro Quo). . . . . . . . 148
11.4 Title VII (42 U.S.C. § 2000E-2) Coworker or Third-
Party Harassment Without Tangible Employment
Action (Hostile Work Environment—Negligence) . . . 149
11.4 Pattern Jury Questions, Coworker or Third-Party
Harassment without Tangible Employment Action
(Hostile Work Environment—Negligence) . . . . . . . . . . . 154
11.5 Title VII—Retaliation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
11.5 Pattern Jury Question, Title VII—Retaliation . . . . . . . . 160
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11.6 Constructive Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
11.6 Pattern Jury Question, Constructive Discharge . . . . . . 164
11.7 Cat’s Paw Theory of Employer Liability . . . . . . . . . . . . . . . 165
11.7 Pattern Jury Questions, Title VII—Cat’s Paw
Theory of Employer Liability. . . . . . . . . . . . . . . . . . . . . . . . . . 171
11.8 Discrimination Based on Disability . . . . . . . . . . . . . . . . . . . . 185
11.8 Pattern Jury Question, Discrimination Based on
Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
11.9 Harassment Based on Disability (Hostile Work
Environment—Negligence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
11.9 Pattern Jury Questions, Harassment Based on
Disability (Hostile Work
Environment—Negligence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
11.10 Failure to Accommodate a Disability . . . . . . . . . . . . . . . . . . 200
11.10 Pattern Jury Question, Failure to Accommodate
Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
11.11 ADA—Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
11.11 Pattern Jury Question, ADA—Retaliation . . . . . . . . . . . . 210
11.12 Defenses to ADA Claim: Business Necessity, Direct
Threat, or Transitory and Minor Condition . . . . . . . . . 211
11.12 Pattern Jury Question, Defenses to ADA Claim—
Business Necessity, Direct Threat, or Transient-
and-Minor Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
11.13 Mixed-Motive Affirmative Defense Instruction (Title
VII and ADA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
11.13 Pattern Jury Question, Mixed-Motive Defense . . . . . . . 219
11.14 Title VII and ADA Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
11.14 Pattern Jury Questions, Title VII and
ADA—Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
11.15 Discrimination Based on Age (ADEA Disparate
Treatment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
11.15 Pattern Jury Question, Discrimination Based on
Age (Disparate Treatment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
11.16 Harassment Based on Age (ADEA Hostile Work
Environment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
11.16 Pattern Jury Questions, Harassment Based on Age
(ADEA Hostile Work Environment) . . . . . . . . . . . . . . . . . . 243
11.17 ADEA—Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
11.18 ADEA Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
11.18 Pattern Jury Questions, ADEA Damages. . . . . . . . . . . . . . 251
11.19 Interference With FMLA Leave. . . . . . . . . . . . . . . . . . . . . . . . . 253
11.19 Pattern Jury Question—Interference with FMLA
Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
11.20 Interference with FMLA Benefits or Job
Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
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11.20 Pattern Jury Question—Interference with FMLA
Benefits or Job Restoration. . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
11.21 Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
11.21 Pattern Jury Question—FMLA Retaliation . . . . . . . . . . . 269
11.22 FMLA Damages—Lost Wages . . . . . . . . . . . . . . . . . . . . . . . . . . 270
11.22 Pattern Jury Question—FMLA Damages, Lost
Wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
11.23 FMLA Damages—Losses Other Than Wages . . . . . . . . . 275
11.23 Pattern Jury Question—FMLA Damages, Losses
Other Than Wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
11.24 Fair Labor Standards Act (FLSA) (29 U.S.C. §§ 201,
et seq.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
11.24 Pattern Jury Questions, FLSA—Failure to Pay
Minimum Wage or Overtime . . . . . . . . . . . . . . . . . . . . . . . . . . 286
11.25 FLSA Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
11.25 Pattern Jury Questions, FLSA Damages . . . . . . . . . . . . . . 291
11.26 FLSA—Employee or Independent Contractor. . . . . . . . . 293
11.26 Pattern Jury Question, FLSA—Employee or
Independent Contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
11.27 FLSA—Joint Employers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
11.27 Pattern Jury Question, FLSA—Joint Employers . . . . . 301

12. TAX REFUNDS

12.1 Reasonable Compensation to

Stockholder—Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
12.2 Debt v. Equity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
12.3 Employee v. Independent Contractor. . . . . . . . . . . . . . . . . . . . 311
12.4 Business Loss v. Hobby Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
12.5 Real Estate Held Primarily for Sale. . . . . . . . . . . . . . . . . . . . . 316
12.6 Section 6672 Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
12.7 Gifts in Contemplation of Death . . . . . . . . . . . . . . . . . . . . . . . . . 323

13. MISCELLANEOUS FEDERAL CLAIMS

13.1 Automobile Dealers Day-in-Court Act (15 U.S.C.

§ 1221) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
13.2 Odometer Tampering, Motor Vehicle Information and
Cost Savings Act (49 U.S.C. § 32701 et seq.). . . . . . . . . . 329
13.3 Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
13.4 Interstate Land Sales Full Disclosure Act (15 U.S.C.
§ 1709) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336

14. [RESERVED]

15. DAMAGES

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15.1 Consider Damages Only If Necessary . . . . . . . . . . . . . . . . . . . 340
15.2 Compensatory Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
15.3 Injury/Pain/Disability/Disfigurement/Loss of Capacity
for Enjoyment of Life. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
15.4 Property Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
15.5 Mitigation of Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
15.6 Nominal Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
15.7 Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347

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INSTRUCTIONS

(Civil Cases)
1

PRELIMINARY INSTRUCTIONS
1.1 Instructions for Beginning of Trial

Members of the jury panel, if you have a cell phone,

PDA, smart phone, iPhone or any other wireless com-
munication device with you, please take it out now and
turn it off. Do not turn it to vibrate or silent; power it
down. During jury selection, you must leave it off.

There are certain rules you must follow while

participating in this trial.

First, you may not communicate with anyone about

the case, including your fellow jurors, until it is time to
deliberate. I understand you may want to tell your fam-
ily, close friends and other people that you have been
called for jury service so that you can explain when you
are required to be in court. You should warn them not
to ask you about this case, tell you anything they know
or think they know about it, or discuss this case in your
presence, until after I accept your verdict or excuse you
as a juror.

Similarly, you must not give any information to

anyone by any means about this case. For example, do
not talk face-to-face or use any electronic device or
1
1.1 PATTERN JURY INSTRUCTIONS

media, such as the telephone, a cell or smart phone,

camera, recording device, PDA, computer, the Internet,
any Internet service, any text or instant messaging ser-
vice, any Internet chat room, blog, or website such as
Facebook, YouTube, Snapchat, Instagram, or Twitter,
or any other way to communicate to anyone any infor-
mation about this case until I accept your verdict or
until you have been excused as a juror. This includes
any information about the parties, witnesses, partici-
pants, [claims] [charges], evidence, or anything else re-
lated to this case.

Second, do not speak with anyone in or around the

courthouse other than your fellow jurors or court
personnel. Some of the people you encounter may have
some connection to the case. If you were to speak with
them, that could create an appearance or raise a
suspicion of impropriety.

Third, do not do any research—on the Internet, in

libraries, in books, newspapers, magazines, or using
any other source or method. Do not make any investiga-
tion about this case on your own. Do not visit or view
any place discussed in this case and do not use Internet
programs or other devices to search for or view any
place discussed in the testimony. Do not in any way
research any information about this case, the law, or
the people involved, including the parties, the wit-
nesses, the lawyers, or the judge, until after you have
been excused as jurors. If you happen to see or hear
anything touching on this case in the media, turn away
and report it to me as soon as possible.

These rules protect the parties’ right to have this

case decided only on evidence they know about, that
has been presented here in court. If you do any research,
investigation or experiment that we do not know about,
or gain any information through improper communica-
tions, then your verdict may be influenced by inac-
2
PRELIMINARY INSTRUCTIONS 1.1
curate, incomplete or misleading information that has
not been tested by the trial process, which includes the
oath to tell the truth and cross-examination. It could
also be unfair to the parties’ right to know what infor-
mation the jurors are relying on to decide the case. Each
of the parties is entitled to a fair trial by an impartial
jury, and you must conduct yourself so as to maintain
the integrity of the trial process. If you decide the case
based on information not presented in court, you will
have denied the parties a fair trial in accordance with
the rules of this country and you will have done an
injustice. It is very important that you abide by these
rules. Failure to follow these instructions could result
in the case having to be retried.

3
1.2 PATTERN JURY INSTRUCTIONS

1.2 Preliminary Instructions to Jury

MEMBERS OF THE JURY:

You have now been sworn as the jury to try this

case. As the judge, I will decide all questions of law and
procedure. As the jury, you are the judges of the facts.
At the end of the trial, I will instruct you on the rules
of law that you must apply to the facts as you find them.

Alternate 1:

Pay close attention to the testimony and evidence.

You will not be allowed to take notes.

Alternate 2:

You may take notes during the trial. Do not allow

your note-taking to distract you from listening to the
testimony. Your notes are an aid to your memory. If
your memory should later be different from your notes,
you should rely on your memory. Do not be unduly
influenced by the notes of other jurors. A juror’s notes
are not entitled to any greater weight than each juror’s
recollection of the testimony.

Until this trial is over, do not discuss this case with

anyone and do not permit anyone to discuss this case in
your presence. This includes your spouse, children, rela-
tives, friends, coworkers, and people with whom you
commute to court each day. During your jury service,
you must not communicate any information about this
case by any means, by conversation or with the tools of
technology. For example, do not talk face-to-face or use
any electronic device or media, such as the telephone, a
cell or smart phone, camera, recording device, PDA,
computer, the Internet, any Internet service, any text
or instant messaging service, any Internet chat room,
blog, or website such as Facebook, MySpace, YouTube,
Snapchat, Instagram, or Twitter, or any other way to
4
PRELIMINARY INSTRUCTIONS 1.2
communicate to anyone any information about this case
until I accept your verdict or excuse you as a juror.

Do not even discuss the case with the other jurors

until the end of the case when you retire to deliberate.
It is unfair to discuss the case before all of the evidence
is in, because you may become an advocate for one side
or the other. The parties, the witnesses, the attorneys,
and persons associated with the case are not allowed to
communicate with you. And you may not speak with
anyone else in or around the courthouse other than
your fellow jurors or court personnel.

Do not make any independent investigation of this

case. You must rely solely on what you see and hear in
this courtroom. Do not try to learn anything about the
case from any other source. In particular, you may not
use any electronic device or media, such as a telephone,
cell phone, smartphone, or computer to research any is-
sue touching on this case. Do not go online or read any
newspaper account of this trial or listen to any radio or
television newscast about it. Do not visit or view any
place discussed in this case and do not use Internet
programs or other devices to search for or to view any
place discussed in the testimony. In sum, you may not
research any information about this case, the law, or
the people involved, including the parties, the wit-
nesses, the lawyers, or the judge, until after you have
been excused as jurors.

There are some issues of law or procedure that I

must decide that the attorneys and I must discuss.
These issues are not part of what you must decide and
they are not properly discussed in your presence. To
avoid having you leave the courtroom and to save time,
I may discuss these issues with the attorneys at the
bench, out of your hearing. When I confer with the at-
torneys at the bench, please do not listen to what we
are discussing. If the discussions require more time, I
5
1.2 PATTERN JURY INSTRUCTIONS

may have you leave the courtroom until the lawyers

and I resolve the issues. I will try to keep these inter-
ruptions as few and as brief as possible.

The trial will now begin. Lawyers for each side will
make an opening statement. Opening statements are
intended to assist you in understanding the significance
of the evidence that will be presented. The opening
statements are not evidence.

After the opening statements, the plaintiff will pre-

sent [his/her/its] case through witness testimony and
documentary or other evidence. Next, the defendant
will have an opportunity to present [his/her/its] case.
The plaintiff may then present rebuttal evidence. After
all the evidence is introduced, [I will instruct you on
the law that applies to this case. The lawyers will then
make closing arguments.][I will instruct you on the law
that applies to this case. The lawyers will then make
closing arguments.]1 Closing arguments are not evi-
dence, but rather the attorneys’ interpretations
of what the evidence has shown or not shown.
Finally, you will go into the jury room to deliber-
ate to reach a verdict.

Keep an open mind during the entire trial. Do

not decide the case until you have heard all of
the evidence, [the closing arguments, and my
instructions.][my instructions, and the closing
arguments.]

It is now time for the opening statements.

1
Some judges prefer to instruct the jury before the lawyers argue, so
that the closing arguments can address the instructions. Other judges
prefer to have arguments before the instructions.

6
 2

GENERAL INSTRUCTIONS
Note

Chapter 2 includes instructions that may be used at various

times during the course of the proceedings. It also contains instruc-
tions that can be used in the jury charge at the end of the trial.
Chapter 3 contains the most common instructions used in the jury
charge. The Chapter 2 instructions can be incorporated in the jury
charge set out in Chapter 3, as applicable.

7
2.1 PATTERN JURY INSTRUCTIONS

2.1 First Recess

We are about to take our first break in this trial.

Remember, until the trial is over, you are not to discuss
this case with anyone, including your fellow jurors. If
anyone approaches you and tries to talk to you about
the case, advise me about it immediately. Do not read
or listen to any news reports of the trial or use any
technology tools to do independent research. Remember
to keep an open mind until all the evidence has been
received. Finally, do not speak with anyone in or around
the courthouse other than your fellow jurors or court
personnel.

8
GENERAL INSTRUCTIONS 2.2
2.2 Stipulated Testimony

A “stipulation” is something that the attorneys

agree is accurate. When there is no dispute about
certain testimony, the attorneys may agree or “stipu-
late” to that testimony.

Stipulated testimony must be considered in the

same way as if that testimony had been received here
in court.

9
2.3 PATTERN JURY INSTRUCTIONS

2.3 Stipulations of Fact

A “stipulation” is an agreement. When there is no

dispute about certain facts, the attorneys may agree or
“stipulate” to those facts. You must accept a stipulated
fact as evidence and treat that fact as having been
proven here in court.

10
GENERAL INSTRUCTIONS 2.4
2.4 Judicial Notice

You must accept as proved facts of which the court

takes judicial notice. The court has taken judicial notice
that [state the facts].

11
2.5 PATTERN JURY INSTRUCTIONS

2.5 Discontinuance as to Some Parties

Certain parties are no longer involved in this trial.

As jurors, it is your duty to consider the issues among
the remaining parties.

12
GENERAL INSTRUCTIONS 2.6
2.6 Limiting Instruction

When testimony or an exhibit is admitted for a

limited purpose, you may consider that testimony or ex-
hibit only for the specific limited purpose for which it
was admitted.

13
2.7 PATTERN JURY INSTRUCTIONS

2.7 Charts and Summaries

Certain charts and summaries have been shown to

you solely to help explain or summarize the facts
disclosed by the books, records, and other documents
that are in evidence. These charts and summaries are
not evidence or proof of any facts. You should determine
the facts from the evidence.

14
GENERAL INSTRUCTIONS 2.8
2.8 Demonstrative Evidence

Exhibit [specify] is an illustration. It is a party’s

[description/picture/model] used to describe something
involved in this trial. If your recollection of the evi-
dence differs from the exhibit, rely on your recollection.

15
2.9 PATTERN JURY INSTRUCTIONS

2.9 Witness Not Called1

[Name of witness] was available to both sides.

Plaintiff/Defendant [name] cannot complain that [name
of witness] was not called to testify, because either
Plaintiff or Defendant [name] could have called [name
of witness].2

1
This instruction is appropriate only if the issue arises during clos-
ing argument or at some other time in trial.
2
There are limits to this instruction. See, e.g., United States v. Wilson,
322 F.3d 353, 343 (5th Cir. 2003) (noting that a negative inference is
drawn when the missing witness has information “peculiarly within his
knowledge”); Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1046–47 (5th
Cir. 1990) (holding that adverse inference rule applies when party ‘‘ ‘has it
peculiarly within his power to produce witnesses whose testimony would
elucidate the transaction [at issue]’ ”).

16
GENERAL INSTRUCTIONS 2.10
2.10 Similar Acts

Evidence that an act was done at one time or on

one occasion is not any evidence or proof whatsoever
that the act was done in this case.

Then how may you consider evidence of similar

acts?

You may consider evidence of similar acts for the

limited purpose of showing [name]’s [motive], [op-
portunity], [intent], [knowledge], [plan], [identity], or
[absence of mistake or accident], which is at issue in
this case.

Such evidence may not be considered for any other

purpose whatsoever. You may not use the evidence to
consider or reflect [name]’s character.

17
2.11 PATTERN JURY INSTRUCTIONS

2.11 Impeachment by Witness’s Inconsistent

Statements

In determining the weight to give to the testimony

of a witness, consider whether there was evidence that
at some other time the witness said or did something,
or failed to say or do something, that was different from
the testimony given at the trial.

A simple mistake by a witness does not necessarily

mean that the witness did not tell the truth as he or
she remembers it. People may forget some things or
remember other things inaccurately. If a witness made
a misstatement, consider whether that misstatement
was an intentional falsehood or simply an innocent
mistake. The significance of that may depend on
whether it has to do with an important fact or with
only an unimportant detail.

18
GENERAL INSTRUCTIONS 2.12
2.12 Impeachment by Witness’s Felony
Conviction

In weighing the credibility of a witness, you may

consider the fact that he or she has previously been
convicted of a felony. Such a conviction does not neces-
sarily destroy the witness’s credibility, but it is one of
the circumstances you may take into account in deter-
mining the weight to give to his or her testimony.

19
2.13 PATTERN JURY INSTRUCTIONS

2.13 Deposition Testimony

Certain testimony [will now be] [has been] pre-

sented to you through a deposition. A deposition is the
sworn, recorded answers to questions a witness was
asked in advance of the trial. Under some circum-
stances, if a witness cannot be present to testify from
the witness stand, that witness’s testimony may be pre-
sented, under oath, in the form of a deposition. Some
time before this trial, attorneys representing the par-
ties in this case questioned this witness under oath. A
court reporter was present and recorded the testimony.
The questions and answers [will be][have been] [read-
][shown] to you today. This deposition testimony is
entitled to the same consideration [and is to be judged
by you as to credibility] [and weighed and otherwise
considered by you in the same way] as if the witness
had been present and had testified from the witness
stand in court.

20
GENERAL INSTRUCTIONS 2.14
2.14 Transcript of Recorded Conversation

A typewritten transcript of an oral conversation,

which can be heard on a recording received in evidence
[as Exhibit ———] was shown to you. The transcript also
purports to identify the speakers engaged in such
conversation.

I have admitted the transcript [as Exhibit ———] for

the limited and secondary purpose of aiding you in fol-
lowing the content of the conversation as you listen to
the recording, and also to aid you in identifying the
speakers.

You are specifically instructed that whether the

transcript correctly or incorrectly reflects the content of
the conversation or the identity of the speakers is
entirely for you to determine, based on your evaluation
of the testimony you have heard about the preparation
of the transcript and on your own examination of the
transcript in relation to your hearing of the recording
itself as the primary evidence of its own contents. If
you should determine that the transcript is in any re-
spect incorrect or unreliable, you should disregard it to
that extent.

21
2.15 PATTERN JURY INSTRUCTIONS

2.15 Law-Enforcement Officer Testimony

You are required to evaluate the testimony of a

law-enforcement officer as you would the testimony of
any other witness. No special weight may be given to
his or her testimony because he or she is a law enforce-
ment officer.

22
GENERAL INSTRUCTIONS 2.16
2.16 Bias—Corporate Party Involved

Do not let bias, prejudice or sympathy play any

part in your deliberations. A corporation and all other
persons are equal before the law and must be treated
as equals in a court of justice.

23
2.17 PATTERN JURY INSTRUCTIONS

2.17 Clear and Convincing Evidence

Clear and convincing evidence is evidence that pro-

duces in your mind a firm belief or conviction as to the
truth of the matter sought to be established. It is evi-
dence so clear, direct, weighty and convincing as to en-
able you to come to a clear conviction without hesitancy.1

1
See Hornbeck Offshore Servs., L.L.C. v. Salazar, 713 F.3d 787, 792
(5th Cir. 2013).

24
GENERAL INSTRUCTIONS 2.18
2.18 Civil Allen Charge1

Please continue your deliberations in an effort to

reach a verdict. This is an important case. The trial has
been expensive in terms of time, effort, money and emo-
tional strain to all parties involved. If you should fail to
agree on a verdict, the case may have to be tried again.
There is no reason to believe that the case can be
retried, by either side, better or more exhaustively than
it has been tried before you.

Any future jury would be selected in the same man-

ner and from the same source as you were chosen.
There is no reason to believe that those jurors would be
more conscientious, more impartial or more competent
to decide the case than you are.

It is your duty to consult with one another and to

deliberate with a view to reaching a verdict if you can
do so, consistent with your individual judgments. You
must not surrender your honest convictions as to the
weight or effect of the evidence solely because of the
opinions of the other jurors or just to reach a verdict.
Each of you must decide the case for yourself, but you
should do so only after consideration of the evidence
with your fellow jurors.

In the course of your deliberations, you should not

1
This proposed instruction was largely derived from Kevin F.
O’Malley, Jay E. Grenig & Hon. William C. Lee, Federal Jury Practice and
Instructions §§ 106.09, 106.10 (5th ed. 2000).
In Brooks v. Bay State Abrasive Prods., Inc., 516 F.2d 1003, 1004
(5th Cir. 1975), the United States Court of Appeals for the Fifth Circuit
stated that an Allen charge may be used in civil cases if it makes clear to
the members of the jury that: (1) they have a duty to adhere to their hon-
est opinions; and (2) they are not doing anything improper by maintaining
a good faith opinion although a mistrial may result.
This charge should be given only after the jury has directly stated
that it cannot reach a verdict, or when the amount of time spent in
deliberations is excessively long, as compared with the nature of the is-
sues and length of the trial, so that it is obvious that the jury is having
difficulty reaching a verdict.

25
2.18 PATTERN JURY INSTRUCTIONS

hesitate to reexamine your own views, and to change

your opinion if you are convinced that it is wrong. To
reach a unanimous verdict, you must examine the ques-
tions submitted to you openly and frankly, with proper
regard for the opinions of others and with a willingness
to reexamine your own views. If a substantial majority
of you are for a verdict for one party, each of you who
holds a different position ought to consider whether
your position is reasonable.

I suggest that you now carefully reexamine and

consider all the evidence in the case in light of my
instructions on the law. In your deliberations you are to
consider all of the instructions I have given to you as a
whole. You should not single out any part of any
instruction including this one.

You may now continue your deliberations.

26
 3

JURY CHARGE
Note

Chapter 3 contains the most common instructions given in the

jury charge. Specific instructions from Chapter 2 may be incorpo-
rated, as indicated in the footnotes, when applicable.

27
3.1 PATTERN JURY INSTRUCTIONS

3.1 Jury Charge

MEMBERS OF THE JURY:

It is my duty and responsibility to instruct you on

the law you are to apply in this case. The law contained
in these instructions is the only law you may follow. It
is your duty to follow what I instruct you the law is,
regardless of any opinion that you might have as to
what the law ought to be.

If I have given you the impression during the trial

that I favor either party, you must disregard that
impression. If I have given you the impression during
the trial that I have an opinion about the facts of this
case, you must disregard that impression. You are the
sole judges of the facts of this case. Other than my
instructions to you on the law, you should disregard
anything I may have said or done during the trial in ar-
riving at your verdict.

You should consider all of the instructions about

the law as a whole and regard each instruction in light
of the others, without isolating a particular statement
or paragraph.

The testimony of the witnesses and other exhibits

introduced by the parties constitute the evidence. The
statements of counsel are not evidence; they are only
arguments. It is important for you to distinguish be-
tween the arguments of counsel and the evidence on
which those arguments rest. What the lawyers say or
do is not evidence. You may, however, consider their
arguments in light of the evidence that has been admit-
ted and determine whether the evidence admitted in
this trial supports the arguments. You must determine
the facts from all the testimony that you have heard
and the other evidence submitted. You are the judges of
the facts, but in finding those facts, you must apply the
law as I instruct you.
28
JURY CHARGE 3.1
You are required by law to decide the case in a fair,
impartial, and unbiased manner, based entirely on the
law and on the evidence presented to you in the
courtroom. You may not be influenced by passion, prej-
udice, or sympathy you might have for the plaintiff or
the defendant in arriving at your verdict.1

1
See Instruction No. 2.16 for corporations and other entities.

29
3.2 PATTERN JURY INSTRUCTIONS

3.2 Burden of Proof: Preponderance of The

Evidence

Plaintiff [name] has the burden of proving [his/her/

its] case by a preponderance of the evidence. To estab-
lish by a preponderance of the evidence means to prove
something is more likely so than not so. If you find that
Plaintiff [name] has failed to prove any element of [his/
her/its] claim by a preponderance of the evidence, then
[he/she/it] may not recover on that claim.1

1
See Pattern Jury Instruction 2.17, if the burden of proof is by clear
and convincing evidence.

30
JURY CHARGE 3.3
3.3 Evidence

The evidence you are to consider consists of the

testimony of the witnesses, the documents and other
exhibits admitted into evidence, and any fair inferences
and reasonable conclusions you can draw from the facts
and circumstances that have been proven.

Generally speaking, there are two types of evidence.

One is direct evidence, such as testimony of an
eyewitness. The other is indirect or circumstantial
evidence. Circumstantial evidence is evidence that
proves a fact from which you can logically conclude an-
other fact exists. As a general rule, the law makes no
distinction between direct and circumstantial evidence,
but simply requires that you find the facts from a
preponderance of all the evidence, both direct and
circumstantial.1

1
If applicable, insert Pattern Jury Instruction 2.3 Stipulations of
Fact; 2.4 Judicial Notice; 2.7 Demonstrative Evidence.

31
3.4 PATTERN JURY INSTRUCTIONS

3.4 Witnesses

You alone are to determine the questions of cred-

ibility or truthfulness of the witnesses. In weighing the
testimony of the witnesses, you may consider the
witness’s manner and demeanor on the witness stand,
any feelings or interest in the case, or any prejudice or
bias about the case, that he or she may have, and the
consistency or inconsistency of his or her testimony
considered in the light of the circumstances. Has the
witness been contradicted by other credible evidence?
Has he or she made statements at other times and
places contrary to those made here on the witness
stand? You must give the testimony of each witness the
credibility that you think it deserves.

Even though a witness may be a party to the action

and therefore interested in its outcome, the testimony
may be accepted if it is not contradicted by direct evi-
dence or by any inference that may be drawn from the
evidence, if you believe the testimony.

You are not to decide this case by counting the

number of witnesses who have testified on the opposing
sides. Witness testimony is weighed; witnesses are not
counted. The test is not the relative number of wit-
nesses, but the relative convincing force of the evidence.
The testimony of a single witness is sufficient to prove
any fact, even if a greater number of witnesses testified
to the contrary, if after considering all of the other evi-
dence, you believe that witness.1

1
If applicable, insert Pattern Jury Instructions 2.2 Stipulated
Testimony; 2.6 Limiting Instruction; 2.8 Adverse Presumption; 2.9 Similar
Acts; 2.10 Impeachment by Witness’s Inconsistent Statements; 2.11
Impeachment by Witness’s Felony Conviction; 2.12 Deposition Testimony.

32
JURY CHARGE 3.5
3.5 Expert Witnesses

When knowledge of technical subject matter may

be helpful to the jury, a person who has special training
or experience in that technical field is permitted to state
his or her opinion on those technical matters. However,
you are not required to accept that opinion. As with
any other witness, it is up to you to decide whether to
rely on it.1

1
The instruction does not refer to the witness as an “expert” in the
jury charge. Rules 702 and 703 of the Federal Rules of Evidence were
amended in 2000 in response to Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993), and the many cases applying Daubert, including Kumho
Tire Co. v. Carmichael, 526 U.S. 137 (1999). Rules 702 and 703 continue
“the practice of . . . referring to a qualified witness as an ‘expert’ ” in the
rule itself. Fed. R. Evid. 702 Committee Note on 2000 amendments.
However, Rule 702’s Committee Note to the 2000 Amendments recognize
that:
Indeed, there is much to be said for the practice that prohibits the
use of the term “expert” by both the parties and the court at trial.
Such a practice “ensures that trial courts do not inadvertently put
their stamp of authority” on a witness’s opinion, and protects against
the jury’s being “overwhelmed by the so-called ‘experts’.”
Fed. R. Evid. 702 Committee Note on 2000 amendments (quoting Hon.
Charles Richey, Proposal 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)).

33
3.6 PATTERN JURY INSTRUCTIONS

3.6 No Inference from Filing Suit

The fact that a person brought a lawsuit and is in

court seeking damages creates no inference that the
person is entitled to a judgment. Anyone may make a
claim and file a lawsuit. The act of making a claim in a
lawsuit, by itself, does not in any way tend to establish
that claim and is not evidence.

34
JURY CHARGE 3.7
3.7 Duty to Deliberate; Notes

It is now your duty to deliberate and to consult

with one another in an effort to reach a verdict. Each of
you must decide the case for yourself, but only after an
impartial consideration of the evidence with your fellow
jurors. During your deliberations, do not hesitate to re-
examine your own opinions and change your mind if
you are convinced that you were wrong. But do not give
up on your honest beliefs because the other jurors think
differently, or just to finish the case.

Alternate 1:

Remember at all times, you are the judges of the

facts. You have not been allowed to take notes during
this trial. You must rely on your memory.

Alternate 2:

Remember at all times, you are the judges of the

facts. You have been allowed to take notes during this
trial. Any notes that you took during this trial are only
aids to memory. If your memory differs from your notes,
you should rely on your memory and not on the notes.
The notes are not evidence. If you did not take notes,
rely on your independent recollection of the evidence
and do not be unduly influenced by the notes of other
jurors. Notes are not entitled to greater weight than
the recollection or impression of each juror about the
testimony.

When you go into the jury room to deliberate, you

may take with you a copy of this charge, the exhibits
that I have admitted into evidence, and your notes. You
must select a [jury foreperson] [presiding juror] to guide
you in your deliberations and to speak for you here in
the courtroom.

Your verdict must be unanimous. After you have

35
3.7 PATTERN JURY INSTRUCTIONS

reached a unanimous verdict, your [jury foreperson]

[presiding juror] must fill out the answers to the writ-
ten questions on the verdict form and sign and date it.
After you have concluded your service and I have
discharged the jury, you are not required to talk with
anyone about the case.

If you need to communicate with me during your

deliberations, the [jury foreperson] [presiding juror]
should write the inquiry and give it to the court secu-
rity officer. After consulting with the attorneys, I will
respond either in writing or by meeting with you in the
courtroom. Keep in mind, however, that you must never
disclose to anyone, not even to me, your numerical divi-
sion on any question.

You may now proceed to the jury room to begin

your deliberations.

36
 4

ADMIRALTY
4.1 Seaman Status

Plaintiff [name] is seeking damages from Defendant

[name] for injuries that [he/she] allegedly suffered as a
result of an accident while [he/she] was performing
[specify work/task].

Plaintiff [name]’s claim arises under a federal law

known as the maritime law. In order for Plaintiff to re-
cover for the claims [he/she] is asserting, claims for
[maintenance and cure, damages under the Jones Act
and for unseaworthiness], Plaintiff must be a seaman.
Plaintiff [name] claims that because of the nature of
[his/her] employment with Defendant [name], [he/she]
was a seaman and is entitled to bring this claim.
Defendant [name] denies that Plaintiff [name] was a
seaman and contends that [he/she] has no such right.
You must first determine whether, when the accident
happened, Plaintiff [name] was a seaman as the law
defines that term.1

A two-part test is used to make this determination.

For Plaintiff [name] to be considered a seaman:

1. [his/her] duties must contribute to the function

of the vessel or the accomplishment of the ves-
sel’s mission; and

2. [he/she] must have an employment related con-

nection to [a vessel] [an identifiable group of
1
McDermott Int’l., Inc. v. Wilander, 498 U.S. 337, 355 (1991).

37
4.1 PATTERN JURY INSTRUCTIONS

vessels subject to common ownership or con-

trol]2 that is substantial in both duration and
nature.

For the first part of the test, you must determine

whether Plaintiff [name] has proved by a preponder-
ance of the evidence that [his/her] duties contributed to
the function of a vessel or the accomplishment of its
mission or to the operation of the vessel. A person need
not aid in the navigation of a vessel in order to qualify
as a seaman. Plaintiff [name] must show only that [he/
she] did the ship’s work.3

If you do not find this first part of the test satisfied,

then your deliberations on seaman status are over and
Plaintiff [name] cannot recover under the Jones Act,
unseaworthiness or for maintenance and cure.

If you do find this first part of the test satisfied,

you then must consider the second part of the test. You
must decide whether Plaintiff [name] has proved by a
preponderance of the evidence that [he/she] has a
substantial employment related connection to [a vessel]
[an identifiable group of vessels under common owner-
ship or control] that is substantial in terms of both
duration and nature.4 In determining whether Plaintiff
[name] has proved that [he/she] had a connection to [a
vessel] [an identifiable group of vessels under common
ownership or control] that is both substantial in dura-
tion and nature, you must consider the totality of the
circumstances of [his/her] employment. The ultimate
2
Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 557 (1997).
3
Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995).
4
Chandris, Inc., 515 U.S. at 366 (citing with approval the Fifth
Circuit’s definition of an “identifiable fleet” of vessels as a “finite group of
vessels under common ownership or control.”); Barrett v. Chevron, U.S.A.,
Inc., 781 F.2d 1067, 1074 (5th Cir. 1986) (“By fleet we mean an identifiable
group of vessels acting together or under one control”); Bertrand v. Int’l
Mooring & Marine, Inc., 700 F.2d 240, 244–45 (5th Cir. 1983) (“[O]ne can
be a member of a crew of numerous vessels which have common owner-
ship or control.”).

38
ADMIRALTY 4.1
inquiry is whether [his/her] fundamental employment
was substantially connected to the function or mission
of the vessel or whether [he/she] was simply a land-
based employee who happened to be working aboard
the vessel at a given time.5

For example, if a land-based employee is given a

change of assignment to a vessel for a permanent or in-
definite period and [his/her] land-based duties are
eliminated, [he/she] is a seaman even if [he/she] is
injured on the first day of assignment on the vessel. In
other words, if a seaman is reassigned to new job re-
sponsibilities, the seaman status determination should
be made in light of that reassignment.

On the other hand, if an employee does [land-based

work] [fixed-platform-based work] as well as work on a
vessel that contributes to the function or mission of the
vessel, you must determine whether [his/her] temporal
connection to the vessel is substantial in nature and
duration and not simply work aboard the vessel that is
sporadic and for an insignificant period.

In determining whether Plaintiff [name] was a sea-

man when the accident occurred, you must look at the
nature and location of [his/her] work for Defendant
[name] as a whole. If Plaintiff [name]’s regularly as-
signed duties required [him/her] to divide work time
between vessel and [land] [a fixed platform], you must
determine [his/her] status as a seaman in the context of
[his/her] entire employment with [his/her] employer,
[name], not just [his/her] duties when [he/she] was
injured.

If you find that Plaintiff [name] has satisfied both

parts of this test, then you must find that [he/she] is a
5
Chandris, 515 U.S. at 370 (quoting Wallace v. Oceaneering Int’l, 727
F.2d 427, 432 (5th Cir. 1984)); Chambers v. Wilco Indus. Serv., L.L.C.,
2010 WL 3070392 at *6–7 (E.D. La. Aug. 3, 2010).

39
4.1 PATTERN JURY INSTRUCTIONS

seaman for purposes of the Jones Act, unseaworthiness,

and maintenance and cure.

(If the plaintiff is a seaman and is injured on

land):

A maritime worker who has attained seaman status

does not lose that protection automatically when on
shore. A seaman may pursue claims under the Jones
Act, maintenance and cure and unseaworthiness when-
ever [he/she] is injured in the service of a vessel,
whether the injury occurs on or off the ship.6 The right
to recover as a seaman does not depend on the place
where the injury occurs. Instead, the right depends on
the nature of the service and its relationship to the
operation of the vessel. If you find that Plaintiff [name]
has proved by a preponderance of the evidence that [he/
she] meets the criteria and [his/her] injury occurred in
the service of the vessel, then [he/she] is entitled to
seek recovery under the Jones Act regardless of whether
the injury occurred on land.

6
Chandris, 515 U.S. at 360 (citing O’Donnell v. Great Lakes Dredge
& Dock Co., 318 U.S. 36 (1943)).

40
ADMIRALTY 4.2
4.2 Vessels

You must determine whether the [specify structure

by name or description] was a “vessel.” A vessel is any
water craft practically capable of maritime transporta-
tion, regardless of its primary purpose or state of move-
ment at a particular moment.1 A water craft need not
be in motion to qualify as a vessel. You must consider
whether a reasonable observer looking at the physical
characteristics and activities of the [specify structure
by name or description] would consider it designed to a
practical degree for carrying people or things over
water. If so, then it is a vessel.2 A water craft that has
been permanently moored or otherwise made practi-
cally incapable of transportation or movement is not a
vessel.3

1
Stewart v. Dutra Constr. Co., 543 U.S. 481, 494–95 (2005).
2
Lozman v. City of Riviera Beach, 133 S. Ct. 735, 741 (2013) (discuss-
ing in depth various factors to consider in determining whether a structure
is a vessel).
3
Stewart, 543 U.S. at 494 (“[A] water craft is not ‘capable of being
used’ for maritime transport in any meaningful sense if it has been
permanently moored or otherwise rendered practically incapable of
transportation or movement.”); see Cain v. Transocean Offshore USA, Inc.,
518 F.3d 295 (5th Cir. 2008) (explaining that Stewart does not require the
Fifth Circuit to modify its precedent that an incomplete water craft is not
a vessel in navigation).

41
4.3 PATTERN JURY INSTRUCTIONS

4.3 Jones Act—Unseaworthiness—Maintenance

and Cure (Seaman Status Not Contested)

Plaintiff [name], [a seaman], is asserting three sep-

arate claims against Defendant [name].

Plaintiff [name]’s first claim, under the federal law

known as the Jones Act, is that [his/her] employer,
Defendant [name], was negligent, and that this negli-
gence was a cause of [his/her] injuries. Plaintiff [name]’s
second claim is that unseaworthiness of a vessel caused
[his/her] injuries. Plaintiff [name]’s third claim is for
what is called maintenance and cure.

You must consider each of these claims separately.

Plaintiff [name] is not required to prove all of these
claims. [He/she] may recover if [he/she] proves any one
of them. However, [he/she] may recover only those dam-
ages or benefits the law provides for the claims that
[he/she] proves, and [he/she] may not recover the same
damages or benefits more than once.

42
ADMIRALTY 4.4
4.4 Jones Act—Negligence

Under the Jones Act, Plaintiff [name] must prove

that [his/her] employer was negligent. Negligence is do-
ing an act that a reasonably prudent person would not
do, or failing to do something that a reasonably prudent
person would do, under the same or similar
circumstances. The occurrence of an accident, standing
alone, does not mean that anyone was negligent or that
anyone’s negligence caused the accident.

In a Jones Act claim, the word “negligence” is liber-

ally interpreted. It includes any breach of duty that an
employer owes to its employees who are seamen, includ-
ing the duty of providing for the safety of the crew.
Under the Jones Act, if the employer’s negligent act
was the cause, in whole or in part, of injury to a sea-
man employee, then you must find that the employer is
liable under the Jones Act.1 In other words, under the
Jones Act, Defendant [name] bears the responsibility
for any negligence that played a part, however slight,
in causing Plaintiff [name]’s injury.2 Negligence may be
a cause of injury even though it operates in combina-
tion with another’s act or with some other cause, if the
negligence played any part in causing such injury.
1
In Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994), the
Supreme Court held that a railroad’s duty under FELA to provide its em-
ployees with a safe place to work includes a duty to avoid subjecting its
workers to negligently inflicted emotional injury. The Court ruled that
“injury” as used in that statute may encompass both physical and emo-
tional injury. The Court also stated that a worker within the zone of
danger of physical impact will be able to recover for emotional injury
caused by fear of physical injury to himself, but a worker outside the zone
of danger will not. Because FELA standards have been carried into the
Jones Act, this zone-of-danger standard applies to Jones Act claims as
well as FELA claims. In Jones Act cases in which a plaintiff sues for
purely emotional injury, without physical impact but within the zone of
danger, the jury should be instructed accordingly. Whether a reasonable
person under the circumstances would have had a fear of physical impact
is a question for the jury.
2
CSX Transp., Inc. v. McBride, 564 U.S. 685, 704 (2011) (internal
citation omitted).

43
4.4 PATTERN JURY INSTRUCTIONS

Negligence under the Jones Act may consist of a

failure to comply with a duty required by law. Employ-
ers of seamen have a duty to provide their employees
with a reasonably safe place to work. If you find that
Plaintiff [name] was injured because Defendant [name]
failed to furnish [him/her] with a reasonably safe place
to work, and that Plaintiff [name]’s working conditions
could have been made safe through the exercise of rea-
sonable care, then you must find that Defendant [name]
was negligent.

The fact that Defendant [name] conducted its

operations in a manner similar to that of other compa-
nies is not conclusive as to whether Defendant [name]
was negligent or not.

You must determine if the operation in question

was reasonably safe under the circumstances. The fact
that a certain practice had been continued for a long
period of time does not necessarily mean that it is rea-
sonably safe under all circumstances. A long-accepted
practice may be an unsafe practice. A practice is not
necessarily unsafe or unreasonable, however, merely
because it injures someone.

A seaman’s employer is legally responsible for the

negligence of one of [his/her/its] employees while that
employee is acting within the course and scope of [his/
her] [job] [employment].

If you find from a preponderance of the evidence

that Defendant [name] assigned Plaintiff [name] to
perform a task that the Plaintiff [name] was not
adequately trained to perform, you must find that
Defendant [name] was negligent.

44
ADMIRALTY 4.5
4.5 Unseaworthiness

Plaintiff [name] seeks damages for personal injury

that [he/she] claims was caused by the unseaworthi-
ness of Defendant [name]’s vessel, the [name].

A shipowner owes every member of the crew

employed on its vessel the absolute duty to keep and
maintain the vessel and all its decks and passageways,
appliances, gear, tools, parts and equipment in a sea-
worthy condition at all times.

A seaworthy vessel is one that is reasonably fit for

its intended use. The duty to provide a seaworthy ves-
sel is absolute because the owner may not delegate that
duty to anyone. Liability for an unseaworthy condition
does not in any way depend on negligence or fault or
blame. If an owner does not provide a seaworthy ves-
sel—a vessel that is reasonably fit for its intended
use—no amount of care or prudence excuses the owner.

The duty to provide a seaworthy vessel includes

the duty to supply an adequate and competent crew. A
vessel may be unseaworthy even though it has a
numerically adequate crew, if too few persons are as-
signed to a given task.

However, the vessel owner is not required to

furnish an accident-free ship. [He/she/it] need only
furnish a vessel and appurtenances that are reasonably
fit for the intended use and a crew that is reasonably
adequate for the assigned tasks.

The vessel owner is not required to provide the best

appliances and equipment, or the finest crews, on [his/
her/its] vessel. [He/she/it] is required to provide only
gear that is reasonably proper and suitable for its
intended use and a crew that is reasonably adequate.

In summary, if you find that the vessel owner did

45
4.5 PATTERN JURY INSTRUCTIONS

not provide an adequate crew of sufficient number to

perform the tasks required, or if you find that the ves-
sel was in any manner unfit under the law as I have
explained it to you and that this was a proximate cause
of the injury, a term I will explain to you, then you may
find that the vessel was unseaworthy and the vessel
owner liable, without considering any negligence on the
part of the vessel owner or any of [his/her/its]
employees.

However, if you find that the owner had a capable

crew, and had appliances and gear that were safe and
suitable for their intended use, then the vessel was not
unseaworthy and Defendant [name] is not liable to
Plaintiff [name] on the claim of unseaworthiness.

46
ADMIRALTY 4.6
4.6 Causation

Not every injury1 that follows an accident necessar-

ily results from it. The accident must be the cause of
the injury.

In determining causation, different rules apply to

the Jones Act claim and to the unseaworthiness claim.

Under the Jones Act, for both the employer’s

negligence and the seaman’s contributory negligence,2
an injury or damage is considered caused by an act or
failure to act if the act or omission brought about or
actually caused the injury or damage, in whole or in
part. In other words, under the Jones Act, a defendant
and a plaintiff each bear the responsibility for any
negligence that played a part, however slight, in caus-
ing the plaintiff’s injury.3

For the unseaworthiness claim, the seaman must

show not merely that the unseaworthy condition was a
cause of the injury, but that such condition was a
proximate cause of the injury. This means that Plaintiff
[name] must show that the condition in question
[played a substantial part] [was a substantial factor] in
bringing about or actually causing [his/her] injury, and
that the injury was either a direct result or a reason-
ably probable consequence of the condition.

1
See Consol. Rail Corp. v. Gottshall, 512 U.S. 532 (1994), discussing
claims for purely emotional injuries within the zone of danger of physical
impact. If a claim for purely emotional injuries is made, without physical
impact but within the zone of danger that causes a fear of physical impact,
then an instruction should be given consistent with Gottshall. See also
Pattern Instruction 4.4.
2
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en
banc).
3
CSX Transp., Inc. v. McBride, 564 U.S. 685, 704 (2011) (internal
citation omitted).

47
4.7 PATTERN JURY INSTRUCTIONS

4.7 Contributory Negligence

Defendant [name] contends that Plaintiff [name]

was negligent and that Plaintiff [name]’s negligence
caused or contributed to causing [his/her] injury. This
is the defense of contributory negligence. Plaintiff
[name]’s negligence will be considered a cause of the
injury if it played a part—no matter how slight—in
bringing about [his/her] injury.1 Defendant [name] has
the burden of proving that Plaintiff [name] was con-
tributorily negligent. If Plaintiff [name]’s negligence
contributed to [his/her] injury, [he/she] may still re-
cover damages, but the amount of [his/her] recovery
will be reduced by the extent of his contributory
negligence.

A seaman is obligated under the Jones Act to act

with ordinary prudence under the circumstances. The
circumstances of a seaman’s employment include not
only [his/her] reliance on [his/her] employer to provide
a safe work environment, but also [his/her] own experi-
ence, training and education. Under the Jones Act, a
seaman has the duty to exercise that degree of care for
[his/her] own safety that a reasonable seaman would
exercise in like circumstances.2

(If the case involves concealment of material in-

formation in hiring:)

You may find Plaintiff [name] was contributorily

negligent if you find that [he/she] concealed material
information about a preexisting injury or physical
condition from [his/her] employer; exposed [his/her]
body to a risk of reinjuring or aggravating a preexisting
1
Norfolk S. R.R. v. Sorrell, 549 U.S. 158 (2007).
2
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en
banc).

48
ADMIRALTY 4.7
injury or condition; and then suffered reinjury or ag-
gravation of that injury or condition.3

If you find that [Defendant [name] was negligent]

[the vessel was unseaworthy], and that the [negligence]
[unseaworthiness] was a proximate [legal] cause of
Plaintiff [name]’s injury, but you also find that the ac-
cident was due partly to Plaintiff [name]’s contributory
negligence, then you must determine the percentage
Plaintiff [name]’s negligence contributed to the accident.
You will provide this information by filling in the ap-
propriate blanks in the jury questions. Do not make
any reduction in the amount of damages that you award
to Plaintiff [name]. It is my job to reduce any damages
that you award by any percentage of contributory
negligence that you assign to Plaintiff [name].

3
Johnson v. Cenac Towing, Inc., 544 F.3d 296 (5th Cir. 2008); Ramirez
v. Am. Pollution Control Corp., 364 F. App’x. 856 (5th Cir. 2010).

49
4.8 PATTERN JURY INSTRUCTIONS

4.8 Damages

If you find that Defendant [name] is liable, you

must award the amount you find by a preponderance of
the evidence is full and just compensation for all of
Plaintiff [name]’s damages.1 (If punitive damages are
an issue:) [You also will be asked to determine if
Defendant [name] is liable for punitive damages.
Because the methods of determining punitive damages
and compensatory damages differ, I will instruct you
separately on punitive damages. The instructions I give
you now apply only to your consideration of compensa-
tory damages.]

Compensatory damages are not allowed as a pun-

ishment against a party. Such damages cannot be based
on speculation, because compensatory damages must be
actual damages to be recoverable. But compensatory
damages are not restricted to out-of-pocket losses of
money or lost time. Instead, compensatory damages
may include mental and physical aspects of injury,
tangible and intangible. Compensatory damages are
intended to make Plaintiff [name] whole, or to restore
[him/her] to the position [he/she] would have been in if
the accident had not happened.

In determining compensatory damages, you should

consider only the following elements, to the extent you
find that Plaintiff [name] has established them by a
preponderance of the evidence: past and future physical
pain and suffering, including physical disability,
impairment, and inconvenience, and the effect of
Plaintiff [name]’s injuries and inconvenience on the
normal pursuits and pleasures of life; past and future
mental anguish and feelings of economic insecurity
1
If there is no issue about punitive damages, the bracketed sen-
tences that follow can be deleted and the instructions on compensatory
damages can continue. If the pleadings and evidence raise issues about
punitive damages, include the bracketed language.

50
ADMIRALTY 4.8
caused by disability; income loss in the past; impair-
ment of earning capacity or ability in the future, includ-
ing impairment of Plaintiff [name]’s earning capacity
due to [his/her] physical condition; past medical expen-
ses [unless medical expenses have been paid as cure];
and the reasonable value, not exceeding actual cost to
Plaintiff [name], of medical care that you find from the
evidence will be reasonably certain to be required in
the future as a proximate result of the injury in
question.

If you find that Plaintiff [name] is entitled to an

award of damages for loss of past or future earnings,
there are two particular factors you must consider. First
you should consider loss after income taxes; that is you
should determine the actual or net income that Plaintiff
[name] has lost or will lose, taking into consideration
that any past or future earnings would be subject to
income taxes. You must award the Plaintiff [name] only
[his/her] net earnings after tax. This is so because any
award you may make here is not subject to income tax.
The federal or state government will not tax any
amount that you award on this basis.

Second, an amount to cover a future loss of earn-

ings is more valuable to Plaintiff [name] if [he/she]
received the amount today than if [he/she] received the
same amount in the future. If you decide to award
Plaintiff [name] an amount for lost future earnings, you
must discount that amount to present value by consid-
ering what return would be realized on a relatively risk
free investment and deducting that amount from the
gross future earning award.

However, some of these damages, such as mental

or physical pain and suffering, are intangible things
about which no evidence of value is required. In award-
ing these damages, you are not determining value,
instead determining what amount that will fairly
51
4.8 PATTERN JURY INSTRUCTIONS

compensate Plaintiff [name] for [his/her] injuries.

52
ADMIRALTY 4.9
4.9 Punitive Damages1

You may, but are not required to, award punitive

damages against a defendant if that defendant has
acted willfully and wantonly. The purpose of an award
of punitive damages is to punish the defendant and to
deter [him/her/it] and others from acting as [he/she/it]
did.2

A defendant’s action is willful or wanton if it is in

reckless or callous disregard of, or with indifference to,
the rights of the plaintiff. An actor is indifferent to the
rights of another, regardless of the actor’s state of mind,
when [he/she/it] proceeds in disregard of a high and
excessive degree of danger that is known to [him/her/it]
or was apparent to a reasonable person in [his/her/its]
position.3

1
Punitive damages are presently available under general maritime
law only if the employer allegedly willfully and wantonly disregarded its
maintenance and cure obligation. Atl. Sounding Co., Inc. v. Townsend, 557
U.S. 404 (2009) (abrogating Guervara v. Mar. Overseas Corp., 59 F.3d 1496
(5th Cir. 1995)); see Instruction No. 4.11. The Supreme Court has held
that punitive damages are not available to a seaman in his claims under
the Jones Act or for unseaworthiness. Dutra Grp. v. Batterton, 139 S. Ct
2275 (2019). It remains unclear whether a seaman may recover for puni-
tive damages from a non-employer third party under the general mari-
time law. Scarborough v. Clemco Indus., 391 F. 3d 660, 667–68 (5th Cir.
2004), cert. denied, 544 U.S. 999 (2005) (holding that punitive damages
are not available to a Jones Act seaman or his survivors in a wrongful
death claim against a third party). Compare Collins v. A.B.C. Marine
Towing, L.L.C., No. 14-1900, 2015 WL 5254710 (E.D. La. Sept. 9, 2015),
and Hume v. Consol. Grain & Barge, Inc., No. 15-0935, 2016 WL 1089349
(E.D. La. Mar. 21, 2016) (both holding punitive damages are recoverable
by seaman against a third party), with Howard v. Offshore Liftboats, LLC,
No. 13-4811, 2015 WL 7428581 (E.D. La. Nov. 20, 2015), Rockett v. Belle
Chase Marine Transp., LLC, 260 F.Supp.3d 688 (E.D. La. May 22, 2017),
and Wade v. Clemco Indus. Corp., No. 16-502, 2017 WL 434425 (E.D. La.
Feb. 1, 2017) (all holding the opposite).
2
On the general subject of punitive damages and the guidelines to be
considered in fashioning jury instructions, see Exxon Shipping Co. v. Baker,
554 U.S. 471 (2008).
3
W. Page Keeton et al., Prosser and Keeton on Torts, § 34, at 213
(West, 5th ed. 1984).

53
4.10 PATTERN JURY INSTRUCTIONS

4.10 Maintenance and Cure Claims and Their

Relationship to Jones Act and
Unseaworthiness Claims—Punitive
Damages for Willful Withholding of
Maintenance and Cure

Plaintiff [name]’s third claim is that, as a seaman,

[he/she] is entitled to recover maintenance and cure.
This claim is separate and independent from both the
Jones Act and the unseaworthiness claims of the
Plaintiff [name]. You must decide this claim separately
from your determination of [his/her] Jones Act and
unseaworthiness claims.

Maintenance and cure provides a seaman who is

disabled by injury or illness while in the ship’s service
with medical care and treatment and the means of
maintaining [him/her]self while [he/she] is
recuperating.

Maintenance and cure is a seaman’s remedy. [If

you determine that Plaintiff [name] was a seaman, you
then must determine if [he/she] is entitled to mainte-
nance and cure.] [Plaintiff [name] is a seaman; there-
fore, you must determine whether [he/she] is entitled to
maintenance and cure.] When there are ambiguities or
doubts about a seaman’s right to maintenance and cure,
you should resolve those ambiguities or doubts in the
seaman’s favor.1

A seaman is entitled to maintenance and cure even

though [he/she] was not injured as a result of any
negligence on the part of his employer or any unsea-
1
Vaughan v. Atkinson, 369 U.S. 527, 532 (1962) (“When there are
ambiguities or doubts [regarding maintenance and cure], they are resolved
in favor of the seaman.”); Johnson v. Marlin Drilling Co., 893 F.2d 77,
79–80 (5th Cir. 1990) (applying “ambiguities or doubts” rule to find that a
treating physician’s opinion that contradicted the opinion of the doctor
performing the independent medical examination “would require a finding
in favor” of the seaman).

54
ADMIRALTY 4.10
worthy condition of the vessel. To recover maintenance
and cure, Plaintiff [name] need only show that [he/she]
suffered injury or illness while in the service of the ves-
sel on which [he/she] was employed as a seaman,
without willful misbehavior on [his/her] part. The injury
or illness need not be work-related; it need only occur
while the seaman is in the ship’s service. Maintenance
and cure may not be reduced because of any negligence
on the seaman’s part.

The “cure” to which a seaman may be entitled

includes the costs of medical attention, including the
services of physicians and nurses as well as hospitaliza-
tion, medicines and medical apparatus. However, the
employer has no duty to provide cure for any period
during which a seaman is hospitalized at the employer’s
expense.

Maintenance is the cost of food, lodging, and

transportation to and from a medical facility. A seaman
is not entitled to maintenance for any period that [he/
she] is an inpatient in any hospital, because the cure
provided by the employer through hospitalization
includes the seaman’s food and lodging.

A seaman is entitled to receive maintenance and

cure from the date [he/she] leaves the vessel until [he/
she] reaches what is called “maximum cure.” Maximum
cure is the point at which no further improvement in
the seaman’s medical condition is reasonably expected.
If it appears that a seaman’s condition is incurable, or
that the treatment will not improve a seaman’s physi-
cal condition but will only relieve pain, [he/she] has
reached maximum cure. The obligation to provide main-
tenance and cure usually ends when qualified medical
opinion is to the effect that maximum possible cure has
been accomplished.

If you decide that Plaintiff [name] is entitled to

maintenance and cure, you must determine when the
55
4.10 PATTERN JURY INSTRUCTIONS

employer’s obligation to pay maintenance began, and

when it ends. One factor you may consider in determin-
ing when the period ends is when the seaman resumed
[his/her] employment, if [he/she] did so. If, however, the
evidence supports a finding that economic necessity
forced the seaman to return to work before reaching
maximum cure, you may take that finding into consid-
eration in determining when the period for maintenance
and cure ends.

If you find that Plaintiff [name] is entitled to an

award of damages under either the Jones Act or
unseaworthiness claims, and if you award [him/her] ei-
ther lost wages or medical expenses, then you may not
award [him/her] maintenance and cure for the same
period. That is because Plaintiff [name] may not re-
cover twice for the same loss of wages or medical
expenses. However, Plaintiff [name] may also be
entitled to an award of damages if Defendant [name]
failed to pay maintenance and cure when it was due.2

An employer who has received a claim for mainte-

nance and cure is entitled to investigate the claim. If,
after investigating the claim, the employer unreason-
ably rejects it, [he/she] is liable for both the mainte-
nance and cure payments [he/she] should have made,
and for any compensatory damages caused by [his/her]
unreasonable failure to pay. Compensatory damages
may include any aggravation of Plaintiff [name]’s condi-
2
The existence and extent of a double-recovery problem will vary
from case to case. Avoiding double recovery requires careful screening of
the evidence and a jury charge tailored to fit the evidence presented. For
example, if the value of the food or lodging supplied to the seaman by the
vessel owner is included in the wage base from which loss of earnings is
calculated, then those items must not again be awarded as maintenance.
If a jury awards loss of earnings from the date of injury to some date after
the end of the voyage, then those same earnings cannot again be awarded
as part of maintenance recovery under the ship owner’s obligation to
provide wages until the end of the voyage. See Colburn v. Bunge Towing,
Inc., 883 F.2d 372 (5th Cir. 1989).

56
ADMIRALTY 4.10
tion because of the failure to provide maintenance and
cure.

You may award compensatory damages because

the employer failed to provide maintenance and cure if
you find by a preponderance of the evidence that:

1. Plaintiff [name] was entitled to maintenance

and cure;

2. it was not provided;

3. Defendant [name] acted unreasonably in fail-

ing to provide maintenance and cure; and

4. the failure to provide the maintenance and cure

resulted in some injury to Plaintiff [name].3

(If punitive damages for maintenance and cure

are at issue:)

If you also find that the employer’s failure to pay

maintenance and cure was not only unreasonable, but
was also willful and wanton, that is, with the deliber-
ate intent to do so, you may also award Plaintiff [name]
punitive damages and attorney’s fees. You may not
award these damages unless the employer acted cal-
lously or willfully in disregard of the seaman’s claim for
maintenance and cure. The purpose of an award of pu-
nitive damages is to punish a defendant and to deter
the defendant and others from such conduct in the
future.

A plaintiff may not recover attorney’s fees for pros-

ecuting Jones Act or unseaworthiness claims. Instead,
3
See Morales v. Garijak, Inc., 829 F.2d 1355 (5th Cir. 1987)
(abrogated on other grounds); Guevara v. Mar. Overseas Corp., 59 F.3d
1496 (5th Cir. 1995) (abrogated with respect to punitive damages award
for wrongful failure to pay maintenance and cure obligation); Atl. Sound-
ing, Inc. v. Townsend, 557 U.S. 404 (2009).

57
4.10 PATTERN JURY INSTRUCTIONS

fees may be recovered only for prosecuting claims that

the employer not only failed to pay maintenance and
cure, but did so in willful and wanton disregard of the
obligation to do so. You may award such attorney’s fees
only if you find that the vessel owner acted willfully
and wantonly in disregarding the vessel owner’s obliga-
tion to pay maintenance and cure.4

4
Atl. Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009) (abrogat-
ing Guevara v. Mar. Overseas Corp., 59 F.3d 1496 (5th Cir. 1995)).

58
ADMIRALTY 4.11
4.11 Section 905(b) Longshore and Harbor
Workers’ Compensation Act Claim

A. Committee Note

A maritime worker who is a seaman has a Jones

Act claim and remedy against his or her employer, and
an unseaworthiness claim and remedy against the
operator of the vessel as to which he or she is a sea-
man, whether the operator is his or her employer or
not. A maritime worker who is not a seaman may claim
LHWCA benefits from his or her employer, and may
bring a negligence action under 33 U.S.C. § 905(b)
against the operator of the vessel on which he or she is
working (and, in some cases, against the employer, if
the employer is operating the vessel). The standards for
liability under the Jones Act and unseaworthiness dif-
fer from those for liability under § 905(b). The catego-
ries of maritime worker—seaman and nonseaman—are
mutually exclusive 1 and require independent
determinations. A maritime worker is limited to
LHWCA remedies only if there is no genuine factual
dispute about whether the worker was a seaman under
the Jones Act.2

B. Charge

1. LHWCA STATUS

A worker is covered by the LHWCA if [he/she] is

(1) engaged in maritime employment and (2) is injured
at a place within the coverage of the act. These are two
separate requirements.
1
Sw. Marine, Inc. v. Gizoni, 502 U.S. 81 (1991).
2
Gizoni, 502 U.S. at 89. This inquiry is a mixed question of fact and
law.

59
4.11 PATTERN JURY INSTRUCTIONS

A worker is engaged in maritime employment if:3

1. [he/she] is injured on actual navigable

waters in the course of [his/her] employ-
ment on those waters;4 or

2. [he/she] is injured while engaged in an es-

sential part of the loading or unloading pro-
cess of a vessel.5

2. Place Within the Coverage of the Act6

A place is within the coverage of the Act if the place

is actual navigable waters, an area adjoining actual
navigable waters, or an area adjoining an area adjoin-
ing actual navigable waters and customarily used by an
employer in loading, unloading, building or repairing a
vessel.7

3. Section 905(b) Negligence Charge

3
A special charge may be appropriate if reasonable minds could
conclude that the plaintiff was engaged in the activities described in 33
U.S.C. § 902(3)(A)-(H). These subsections exclude from the definition of
maritime workers certain clerical, recreational, marina and aquaculture
workers, employees of suppliers or vendors, suppliers or transporters
temporarily doing business on a covered premise and not engaged in work
normally performed by the employer, masters or members of the crew of a
vessel, and certain persons employed to build, load, unload, or repair
certain vessels.
4
Dir., Office of Workers’ Comp. Programs v. Perini N. River Assocs.,
459 U.S. 297 (1983); Great S. Oil & Gas Co. v. Dir., Office of Workers’
Comp. Programs, 401 F. App’x. 964 (5th Cir. 2010).
5
Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40 (1989), and
cases cited therein; Coastal Prod. Servs. v. Hudson, 555 F.3d 426, 439 (5th
Cir. 2009).
6
A special charge may be appropriate if reasonable minds could
conclude that the plaintiff’s employment fits within 33 U.S.C. § 903(d).
This section excludes from coverage certain employees injured while work-
ing in certain areas of a facility engaged exclusively in building, repairing,
and dismantling certain small vessels, unless the facility receives federal
maritime subsidies or the employee is not covered by a state worker-
compensation law.
7
33 U.S.C. § 903; Coastal Prod. Serv. Inc. v. Hudson, 555 F.3d 426,
431 (5th Cir. 2009).

60
ADMIRALTY 4.11
If you find that Plaintiff [name] was covered by the
LHWCA at the time of [his/her] injury, then you must
determine whether Plaintiff [name]’s injury was caused
by the negligence of Defendant [name], the operator of
the vessel [name]. Defendant [name] does not owe
Plaintiff [name] the duty to provide a seaworthy vessel.
Defendant [name] is liable only if [he/she] was guilty of
negligence that was the legal cause of Plaintiff [name]’s
injury. [The shipowner owes three duties to
longshoremen: (1) a turnover duty, (2) a duty to exercise
reasonable care in the areas of the ship under the ac-
tive control of the vessel owner, and (3) a duty to
intervene.8]

4. The Turnover Duty

Negligence is the failure to exercise reasonable care

under the circumstances. A vessel operator such as
Defendant [name] must exercise reasonable care before
Plaintiff [name]’s employer, a [specify type of maritime
employment in which employer was engaged in the ves-
sel, such as stevedore], began its operations on the
vessel. Defendant [name] must use reasonable care to
have the vessel and its equipment in such condition
that an expert and experienced [specify type of mari-
time employment in which employer is engaged on the
vessel] would be able, by the exercise of reasonable care,
to carry on its work on the vessel with reasonable safety
to persons and property. This means that Defendant
[name] must warn Plaintiff [name]’s employer of a haz-
ard on the ship, or a hazard with respect to the vessel’s
equipment, if:

1. Defendant [name] knew about the hazard

or should have discovered it in the exercise of rea-
sonable care, and
8
A proper charge must be crafted in light of the plaintiff’s factual
allegations. Kirksey v. Tonghai Mar., 535 F.3d 388 (5th Cir. 2008) (citing
Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156 (1981); Howlett v.
Birkdale Shipping Co., 512 U.S. 92 (1994)).

61
4.11 PATTERN JURY INSTRUCTIONS

2. the hazard was one likely to be encountered

by Plaintiff [name]’s employer in the course of its
operations in connection with Defendant [name]’s
vessel, and

3. the hazard was not known to Plaintiff

[name]’s employer and would not be obvious to or
anticipated by a reasonably competent [specify type
of maritime employment in which employer is
engaged on the vessel, such as stevedore or other
designated maritime employer] in the performance
of the work. Even if the hazard was one that
Plaintiff [name]’s employer knew about or that
would be obvious to or anticipated by a reasonably
competent [specify stevedore or other type of mari-
time employment in which the employer was
engaged on the vessel], Defendant [name] must
exercise reasonable care to avoid the harm to
Plaintiff [name] if Defendant [name] knew or
should have known Plaintiff [name]’s employer
would not or could not correct the hazard and
Plaintiff [name] could not or would not avoid it.9

The standard of care a vessel operator owes to

Plaintiff [name] after [his/her] employer began its
operations on the vessel is different than the standard
9
This sentence does not appear in the Scindia decision (see footnote
33) but appears warranted from a number of later lower court decisions.
See, e.g., Pluyer v. Mitsui O. S. K. Lines, Ltd., 664 F.2d 1243 (5th Cir.
1982); Griffith v. Wheeling-Pittsburgh Steel Corp., 657 F.2d 25 (3d Cir.
1981); Harris v. Reederei, 657 F.2d 53 (4th Cir. 1981); Moore v. M.P.
Howlett, Inc., 704 F.2d 39 (2d Cir. 1983). The language selected should not
conflict with the rule that the shipowner has no duty to anticipate the ste-
vedore’s negligence. See, e.g., Polizzi v. M/V Zephyros II Monrovia, 860
F.2d 147 (5th Cir. 1988). The Supreme Court has held, for example, that
the exercise of reasonable care does not require the shipowner to supervise
the ongoing operations of the loading stevedore (or other stevedores who
handle the cargo before its arrival in port) or to inspect the completed
stow. Howlett v. Birkdale Shipping Co., 512 U.S. 92 (1994), remanded to
1995 WL 27104 (E.D. Pa. 1995). In Howlett, the Supreme Court dealt with
the turnover duty to warn of latent defects in the cargo stow and cargo
area, and held that the duty is a narrow one.

62
ADMIRALTY 4.11
of care governing the vessel operator’s actions before
the employer began its vessel operations.

5. After the Employer Begins Vessel

Operations-Duty of Vessel Owner With
Active Control of Vessel

If, after Plaintiff [name]’s employer [name] began

operations on the vessel, Defendant [name] actively
involved itself in those operations, it is liable if it failed
to exercise reasonable care in doing so, and if such fail-
ure was the cause of Plaintiff [name]’s injuries.

If, after Plaintiff [name]’s employer began opera-

tions on the vessel, Defendant [name] maintained
control over equipment or over an area of the vessel on
which Plaintiff [name] could reasonably have been
expected to go in performing [his/her] duties, Defendant
[name] must use reasonable care to avoid exposing
Plaintiff [name] to harm from the hazards [he/she] rea-
sonably could have been expected to encounter from
such equipment or in such area.

6. Duty to Intervene

If, after Plaintiff [name]’s employer [name] began

its operations on the vessel, Defendant [name] learned
that an apparently dangerous condition existed (includ-
ing a condition that existed before Plaintiff [name]’s
employer began its operations) or has developed in the
course of those operations, Defendant [name] vessel
owner must use reasonable care to intervene to protect
Plaintiff [name] against injury from that condition only
if Plaintiff [name]’s employer’s judgment in continuing
to work in the face of such a condition was so obviously
improvident that Defendant [name] should have known
that the condition created an unreasonable risk of harm
to Plaintiff [name]. In determining whether Plaintiff
[name]’s employer’s judgment is “so obviously improvi-
dent” that Defendant [name] should have intervened,
63
4.11 PATTERN JURY INSTRUCTIONS

you may consider that Plaintiff [name]’s employer has

the primary duty to provide a safe place to work for
Plaintiff [name] and its other employees, and that
Defendant [name] ordinarily must justifiably rely on
the Plaintiff [name]’s employer to provide its employees
with a reasonably safe place to work. In determining
whether Defendant [name] justifiably relied on the de-
cision of Plaintiff [name]’s employer to continue the
work despite the condition, you should consider the
expertise of Plaintiff [name]’s employer, the expertise of
Defendant [name], and any other factors that would
tend to establish whether Defendant [name] was
negligent in failing to intervene into the operations of
Plaintiff [name]’s employer.10

7. Damages—Loss of Society 1 1 —Only

Available in United States Territorial
Waters in a § 905(b) Claim

In addition to the damages that Plaintiff [name]

demands, [he/she] seeks damages for the loss of society
with [his/her] [wife/husband], [name], which [he/she]
claims [he/she] has suffered as a result of [his/her]
accident.

The spouse of an injured person may recover dam-

ages for loss of society if [he/she] proves by a preponder-
ance of the evidence that [he/she] has suffered the loss
of society with [his/her] [wife/husband] and that the
loss of society was caused by injuries to [his/her] wife/
husband that are attributable to Defendant [name]’s
fault.
10
Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156 (1981);
Randolph v. Laeisz, 896 F.2d 964 (5th Cir. 1990).
11
Miles v. Apex Marine Corp., 498 U.S. 19 (1990); Murray v. Anthony
J. Bertucci Constr. Co., 958 F.2d 127 (5th Cir. 1992); Michel v. Total
Transp., Inc., 957 F.2d 186 (5th Cir. 1992) (a claim for loss of society is
only available in a 905(b) claim arising in territorial waters); Moore v.
M/V Angela, 353 F.3d 376, 383 (5th Cir. 2003); Sinegal v. Merit Energy
Co., 2010 WL 1335151 (W.D. La. March 29, 2010); Nunez v. Forest Oil
Corp., 2008 WL 2522121 (E.D. La. June 20, 2008).

64
ADMIRALTY 4.11
Loss of society covers only the loss of love, affec-
tion, care, attention, comfort, protection and sexual re-
lations the spouse has experienced. It does not include
loss of support or loss of income that the spouse
sustains. And it does not include grief or mental
anguish.

If you find by a preponderance of the evidence that

Plaintiff [name] suffered the loss of society with [his/
her] [wife/husband], [name] as a result of injuries
caused by Defendant [name]’s fault, you may award
[him/her] damages for loss of society. If, on the other
hand, you find from a preponderance of the evidence
that Plaintiff [name] did not sustain loss of society with
[his/her] [wife/husband] [name] as a result of injuries
attributable to Defendant [name]’s fault, then you may
not award [him/her] damages for loss of society.

You may not award damages for any injury or

condition from which Plaintiff [name] may have suf-
fered, or may now be suffering, unless Plaintiff [name]
has proved by a preponderance of the evidence that the
accident proximately or directly caused that injury or
condition.

65
 5

RAILROAD EMPLOYEES
5.1 FELA, 45 U.S.C. §§ 51 and 531

Plaintiff [name]’s claim is based on the Federal

Employers Liability Act (“FELA”). This is a federal stat-
ute that requires railroads, such as Defendant [name],
to exercise reasonable care to provide a reasonably safe
workplace for its employees.

Plaintiff [name] claims that while [he/she] was

employed by Defendant [name], [he/she] suffered an
injury caused by Defendant’s negligence. Plaintiff
[name] claims that Defendant [name] should be re-
quired to pay damages because its negligence was a
cause of injury to Plaintiff [name]. Plaintiff [name] has
the burden of proving this claim by a preponderance of
the evidence.

Defendant [name] denies Plaintiff [name]’s claim.

Defendant [name] claims that Plaintiff [name] was
negligent and that this negligence was a cause of the
claimed injury. Defendant [name] has the burden of
proving this claim by a preponderance of the evidence.
If you determine that both Plaintiff [name]’s negligence
and Defendant [name]’s negligence were causes of
Plaintiff [name]’s injury or damage, then you will be
asked to compare the negligence of both and determine
what amount or percentage of fault is attributable to
Plaintiff [name].
1
The most recent Supreme Court case is CSX Transportation, Inc. v.
Robert-McBride, 564 U.S. 685 (2011). The most recent Fifth Circuit author-
ity is Huffman v. Union Pacific Railroad, 675 F.3d 412, reh’g en banc
denied, 683 F.3d 619 (5th Cir. 2012). But see Huffman, 683 F.3d at 620
(Dennis, J., dissenting from the denial of rehearing en banc).

66
RAILROAD EMPLOYEES 5.1
You are instructed that negligence is the failure to
use reasonable care. Reasonable care is the degree of
care that a reasonably prudent person would use under
like circumstances. The law does not say how a reason-
ably prudent person should act; that is for you to decide.
Negligence may be either doing something that a rea-
sonably careful person would not do under like circum-
stances, or failing to do something that a reasonably
careful person would do under like circumstances.

The fact that an accident or injury may have hap-

pened does not mean that it was caused by anyone’s
negligence. Defendant [name] is not required to guaran-
tee Plaintiff [name]’s safety. The extent of Defendant
[name]’s duty is to exercise reasonable care under the
circumstances to see that the workplace is reasonably
safe. Defendant [name]’s duty is measured by what is
reasonably foreseeable under the circumstances. If
Defendant [name] has no reasonable ground to antici-
pate that a particular condition would or might result
in a mishap and injury, then Defendant [name] is not
required to do anything to correct that condition.

If negligence is proved, Plaintiff [name] must show

that it was a cause of the injury for which Plaintiff
[name] seeks damages. To be a cause of an injury, the
negligence must have played a part, no matter how
slight, in bringing about or causing that injury. Negli-
gence may be a cause of injury even though it operates
in combination with another’s act or with some other
cause, if the negligence played any part in causing such
injury.

Plaintiff [name] specifically claims that Defendant

[name] [describe the specific acts or omissions asserted
as Defendant [name]’s negligence].

The parties have stipulated, or agreed, that when

Plaintiff [name] was injured, [he/she] was an employee
of Defendant [name] performing duties in the course of
67
5.1 PATTERN JURY INSTRUCTIONS

that employment, and that Defendant [name] was a

common carrier by railroad engaged in interstate
commerce. You must consider whether Plaintiff [name]
has proven by a preponderance of the evidence that:

1. Defendant [name] was negligent in any one or

more of the ways Plaintiff [name] claims; and

2. Defendant [name]’s negligence played any part

in causing the injury for which Plaintiff [name]
seeks damages.2

If Plaintiff [name] does not prove both of these facts

by a preponderance of the evidence, you must find for
Defendant [name]. If Plaintiff [name] does prove both
facts, you must [find for Plaintiff [name]] [consider
Defendant [name]’s claim that Plaintiff [name] was also
negligent and that this negligence was a cause of, or
contributed to, Plaintiff [name]’s injury].

Defendant [name] specifically claims that [identify

the acts or omissions asserted as Plaintiff [name]’s
negligence]. Defendant [name] has the burden of prov-
2
This instruction would be used in the usual situation in which the
parties stipulate that the defendant is a common carrier covered by the
FELA and that the plaintiff was injured in the scope and course of employ-
ment with the defendant. If these issues are disputed, the following
instruction would be used:
Plaintiff [name] must prove each of the following facts by a
preponderance of the evidence:

1. When Plaintiff [name] was injured, [he/she] was an employee

of Defendant [name] performing duties in the course of that
employment;

2. at that time, Defendant [name] was a common carrier by

railroad engaged in interstate commerce;

3. Defendant [name] was negligent in any one or more of the

ways Plaintiff [name] claims; and

4. Defendant [name]’s negligence played any part in causing the

injury for which the Plaintiff [name] seeks damages.

68
RAILROAD EMPLOYEES 5.1
ing both of the following facts by a preponderance of
the evidence:

1. Plaintiff [name] was negligent; and

2. this negligence played a part in causing the

injury for which Plaintiff [name] seeks
damages.

If you find that Defendant [name] was negligent

and that Plaintiff [name] was negligent — that Plaintiff
[name]’s injury was due partly to Plaintiff [name]’s fault
— then you must decide to what extent [his/her] injury
was caused by [his/her] negligence. This should be fixed
as a percentage.

Let me give you an example. If you find that both

parties were negligent, and you find that Plaintiff
[name]’s own negligence was 10% responsible for the
injury or damage, you must fill in that percentage as
your finding in the blank provided on the verdict form
that you will receive. Of course, by using the number
10% as an example, I do not mean to suggest any
specific amount to you. If you find that both parties
were negligent, the percentage of Plaintiff [name]’s
negligence is for you to decide. You might find any
amount between 1% and 99%. But do not make any
reduction in the amount of damages that you award to
Plaintiff [name]. I will reduce the damages that you
award by the percentage of negligence that you assign
to Plaintiff [name].3

3
Under the FELA, the same causation standard applies to a
plaintiff’s negligence as to the defendant’s negligence. Norfolk S. Ry. Co. v.
Sorrell, 549 U.S. 158, 159–60 (2007).

69
5.2 PATTERN JURY INSTRUCTIONS

5.2 Federal Safety Appliance Act, 49 U.S.C.

§ 20301 et seq. (2006) (Recodifying 45 U.S.C.
§§ 1–16 (1988))

Plaintiff [name]’s claim is based on the Federal

Safety Appliance Act (“FSAA”), a federal statute that
requires railroads such as Defendant [name] to keep
certain railroad equipment in a prescribed condition. If
the equipment is not kept in that condition and an em-
ployee is injured, the employee may seek damages
under the Federal Employers Liability Act (“FELA”).1
These instructions apply when damages claims are
brought under the FELA for violations of the FSAA.

Plaintiff [name] claims that Defendant [name] [de-

scribe the specific act[s] or omission[s] asserted as the
FSAA violations].
1
In addition to a negligence cause of action under 45 U.S.C. § 51, the
FELA also provides for certain causes of action not based on negligence.
These include actions brought under the FELA for injuries caused by the
railroad’s violation of the FSAA, 49 U.S.C. § 20301 et seq. The FSAA does
not create a private cause of action, but employees who allege they have
been injured as a result of FSAA violations may sue under the FELA. See
Crane v. Cedar Rapids & Iowa City Ry. Co., 395 U.S. 164, 166 (1969). In
some cases, the same facts that give rise to a claim under the general
negligence provisions of FELA may also provide a basis for a related claim
under the FSAA. But the elements of a FELA negligence claim are sepa-
rate from those of an FSAA claim. In a case under the FSAA, proof of the
violation supplies “the wrongful act necessary to ground liability under
the F.E.L.A.” Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430,
434 (1949). Unlike the FELA, the FSAA makes it unnecessary for the
Plaintiff to show that the railroad was negligent. Proof that the FSAA was
violated shows negligence as a matter of law. Urie v. Thompson, 337 U.S.
163, 189 (1949); O’Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 390
(1949). Care on the part of the railroad is, as a general rule, immaterial
because the Supreme Court “early swept all issues of negligence out of
cases under the Safety Appliance Act.” O’Donnell, 338 U.S. at 390. If,
however, the plaintiff’s negligence was the sole cause of the injury or
death, then the statutory violation could not have contributed “in whole or
in part to the injury” or death. Beimert v. Burlington N., Inc., 726 F.2d
412, 414 (8th Cir. 1984). Claims brought under the general negligence pro-
visions of FELA, and claims brought under the FSAA, should be submit-
ted to the jury in separate instructions.

70
RAILROAD EMPLOYEES 5.2
To succeed in proving [his/her] claim, Plaintiff
[name] must prove each of the following by a preponder-
ance of the evidence:

1. Plaintiff [name] [name of decedent], was an em-

ployee of Defendant [name];2

2. [specify the alleged FSAA violation; for ex-

ample, in a case based on a violation of 49
U.S.C. § 20302(a)(2), formerly 45 U.S.C. § 4
(1988), this element might read “the grab iron
at issue was not secure; and . . . .”];3 and

3. this condition played a part, no matter how

2
In the typical FELA case, there is no dispute about whether the
injured or deceased person was an employee acting within the scope of
railroad employment when the incident at issue occurred. If there is no
dispute and the parties have stipulated this element, this language need
not be included. Instead, the instruction would read: “The parties have
stipulated, or agreed, that when Plaintiff [name] was [injured/killed], [he/
she] was an employee of Defendant [name] performing duties in the course
of that employment.”
If it is argued that the plaintiff was not acting within the scope of
his or her railroad employment at the relevant time, the following should
be added to the first element:

1. Plaintiff [name][name of decedent] was an employee of Defendant

[name] acting within the scope of [his/her] employment at the time
of [his/her] [injury][death] [describe incident alleged to have caused
injury or death];
3
The Secretary of Transportation has promulgated regulations that
establish standards for equipment covered under the FSAA. These regula-
tions are in Title 49 of the Code of Federal Regulations under the Federal
Railroad Administration (FRA) regulations. A violation of these regula-
tions is a violation of the FSAA and gives rise to damage suits by those
injured. Urie, 337 U.S. at 191. If the Plaintiff [name]’s case is based on a
regulatory violation, the Plaintiff [name] may ask the court to replace this
second element with one submitting the regulation-violation theory.
The FSAA requires that the equipment be “in use” when the injury
occurs. See 49 U.S.C. § 20302(a). The “in use” requirement serves to
“exclude those injuries directly resulting from the inspection, repair, or
servicing of railroad equipment located at a maintenance facility.” Angell
v. Chesapeake & Ohio Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980). Any
dispute about whether the equipment was “in use” when the incident oc-
curred is a question of law for the court, not the jury, to decide. Pinkham
v. Me. Cent. R.R. Co., 874 F.2d 875, 881 (1st Cir. 1989). No jury instruction
is needed.

71
5.2 PATTERN JURY INSTRUCTIONS

small, in bringing about or actually causing

[injury to Plaintiff [name]] [death to [name of
decedent]].

If Plaintiff [name] has proved all of these elements,

then Plaintiff [name] is entitled to recover damages
Plaintiff [name] actually sustained as a result of the
violation. Defendant [name] is liable for the damages
caused by the violation, even though Defendant [name]
was not negligent. Plaintiff [name]’s negligence is not a
defense and does not reduce [his/her] recovery for any
damages caused by any violation of the FSAA. 4 If
Plaintiff [name] fails to prove any of these elements,
your verdict must be for Defendant [name].

4
This instruction may be modified if there is an issue as to whether
the plaintiff’s negligence was the “sole cause” of the injury. That scenario
can defeat recovery in a FELA action predicated on an alleged FSAA
violation. The defendant may ask for an instruction stating that if the
plaintiff’s negligence was the sole cause of the injury, then he or she may
not recover under the FELA. The Fifth Circuit has in the past criticized
such instructions as unnecessary and confusing. See, e.g., Almendarez v.
Atchison, Topeka & Santa Fe Ry. Co., 426 F.2d 1095, 1097 (5th Cir. 1970).
More recent Fifth Circuit case law, however, indicates that the defendant
may ask for such instructions. See Maldonado v. Mo. Pac. Ry. Co., 798
F.2d 764, 767 (5th Cir. 1986) (“Of course, because the FSAA violation must
be a causative factor in the Plaintiff [name]’s injuries, the railroad in ap-
propriate circumstances may raise a sole cause defense.”). Other circuits
provide for such an instruction when the evidence supports it and the
defendant requests it. See Beimert v. Burlington N., Inc., 726 F.2d 412,
414 (8th Cir. 1984). If an instruction is given, appropriate language is as
follows:
Defendant [name] is responsible if [describe the alleged Federal
Safety Appliance Act violation] played any part, no matter how
small, in causing Plaintiff [name]’s injuries. This means that
Defendant [name] is not responsible if any other cause, including
Plaintiff [name]’s own negligence, was solely responsible.

72
 6

ANTITRUST (15 U.S.C. §§ 1, ET SEQ.)

Comment

The antitrust law instructions included in previous editions of

Fifth Circuit Pattern Jury Instructions are out of date, and courts
and parties should not rely upon them.

The following sources may be helpful in drafting jury charges

in antitrust cases:

Kevin F. O’Malley, et al., Federal Jury Practice Instructions,

ch. 150, Antitrust-Private Action (5th ed. 2001), and Kevin F.
O’Malley, et al., Federal Jury Practice Instructions Civil Companion
Handbook, vol. 1, ch.1 (2011).

American Bar Association Antitrust Section, Model Jury

Instructions in civil Antitrust Cases (A.B.A., Chicago, Ill., 2005).
This source contains instructions for claims under Sherman Act
§ 1 and § 2. Note, however, that this volume has not been
supplemented, and there have been developments in the law since
2005. See, e.g., Pacific Bell Tel. Co. v. Linkline Commc’ns, 555 U.S.
438 (2009) (price-squeeze claims may not be brought under Section
2 of the Sherman Antitrust Act when the defendant has no
antitrust duty to deal with the plaintiff at wholesale level); Leegin
Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877 (2007) (rule of
per se illegality no longer applies to vertical agreements to fix min-
imum resale prices) (overruling Dr. Miles Medical Co. v. John D.
Park & Sons Co., 220 U.S. 373 (1911)); Illinois Tool Works Inc. v.
Indep. Ink, Inc., 547 U.S. 28 (2006) (possession of a patent does not
create a presumption of market power for purposes of analyzing
tying claims); Texaco v. Dagher, 547 U.S. 1 (2006) (rule of per se il-
legality does not apply to setting of prices by competitors in a joint
venture); see also Verizon Commc’ns Inc. v. Trinko, LLP, 540 U.S.
398 (2004) (refusing to expand limited exceptions to rule that there
is no duty to aid rivals under Section 2 of the Sherman Act; clarify-
ing that proof of a dangerous probability of success is an element
of a monopoly leveraging claim).

In addition, the American Bar Association Section on Antitrust

Law has compiled antitrust jury instructions that have been used
73
 PATTERN JURY INSTRUCTIONS

in trials, which can be accessed at: http://www.abanet.org/antitrus

t/at-committees/at-trial/jury-instructions.shtml (sign-in required).

74
 7

SECURITIES ACT
7.1 Securities Act1—(Rule 10b-5)

Plaintiff [name] claims that Defendant [name]

violated the federal securities law, Rule 10b-5, which
makes it unlawful to:

1. employ any device, scheme, or artifice to

defraud;

2. make any untrue statement of a material fact

or to omit to state a material fact necessary in
order to make the statement not misleading; or

3. engage in any act, practice, or course of busi-

ness that operates or would operate as a fraud
or deceit on any person,

in connection with the purchase or sale of any security.2

To succeed on this claim, Plaintiff [name] must

prove each of the following elements3 by a preponder-
ance of the evidence:
1
This instruction sets out the elements of a “typical private right of
action for securities fraud.” Stoneridge Inv. Partners, LLC v. Scientific-
Atlanta, Inc., 552 U.S. 148, 157 (2008). In more complex cases, additional
instructions may be necessary.
2
17 C.F.R. § 240.10b-5; Stoneridge Inv. Partners, LLC v. Scientific-
Atlanta, Inc., 552 U.S. 148, 156–57 (2008); Affco Invs. 2001, LLC v.
Proskauer Rose, LLP, 625 F.3d 185, 192 (5th Cir. 2010).
3
Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2184
(2011); Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S.
148, 157 (2008); Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 341–42 (2005);
Affco Invs. 2001, LLC v. Proskauer Rose, LLC, 625 F.3d 185, 192 (5th Cir.
2010).

75
7.1 PATTERN JURY INSTRUCTIONS

1. a material misrepresentation or omission by

Defendant [name];

2. made with an intent to deceive, manipulate, or

defraud;4

3. a connection between the misrepresentation or

omission and the purchase or sale of a security;

4. reliance on the misrepresentation or omission;

5. economic loss; and

6. loss causation.

The first element requires a material misrepresen-

tation or omission by Defendant [name]. A “misrepre-
sentation” is a statement that is not true. Forward-
looking statements, such as predictions or expressions
of opinion, are not representations of material facts so
long as they are not worded as fact or guarantees and
the person making the statements reasonably believed
them at the time they were made. An “omission” is ac-
tionable if it omitted to state facts that would be neces-
sary to make other statements by Defendant [name], in
light of the circumstances under which they were made,
not misleading. A “material” fact is one that a reason-
able investor would consider significant in the decision
whether to invest, a fact that alters the “total mix” of
information available to a reasonable investor. A minor
or trivial detail is not material.

To establish the second element, that Defendant

[name] acted with an intent to deceive, manipulate, or
defraud,5 Plaintiff [name] must show that Defendant
[name] [stated material facts [he/she] knew to be false]
4
Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n.12 (1976); Goldstein
v. MCI WorldCom, 340 F.3d 238, 245 (5th Cir. 2003).
5
Ernst & Ernst, 425 U.S. at 193 n.12; Goldstein, 340 F.3d at 245.

76
SECURITIES ACT 7.1
[stated untrue facts with reckless disregard for their
truth or falsity] [knew of the existence of material facts
that were not disclosed although [he/she] knew that
knowledge of those facts would be necessary to prevent
[his/her] other statements from being misleading].
Plaintiff [name] does not satisfy this burden of proof
merely by showing that Defendant [name] acted ac-
cidentally or made a mistake.

To satisfy the fourth element of the claim, reliance,

Plaintiff [name] must prove that [he/she] in fact relied
on the false statements. If you find that Plaintiff [name]
would have engaged in the transaction anyway, and
that the misrepresentation had no effect on [his/her]
decision, then there was no reliance and your verdict
must be for Defendant [name] on this claim. In addi-
tion, Plaintiff [name] must prove that [his/her] reliance
was justified. [He/she] cannot have intentionally closed
[his/her] eyes and refused to investigate the circum-
stances in disregard of a risk known to [him/her], or a
risk that was so obvious that [he/she] should have been
aware of it, and so great as to make it highly probable
that harm would follow.6

If you find that Defendant [name] made an omis-

sion or failed to disclose a material fact, you must
presume that Plaintiff [name] relied on the omission or
failure to disclose. Defendant [name] may rebut, or
overcome, this presumption if [he/she] proves, by a
preponderance of the evidence, that Plaintiff [name]’s
decision would not have been affected even if Defendant
[name] had disclosed the omitted facts.7
6
Finkel v. Docutel/Olivetti Corp., 817 F.2d 356 (5th Cir. 1987); Rifkin
v. Crow, 574 F.2d 256 (5th Cir. 1978).
7
Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 359 (5th Cir. 1987)
(citing Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128 (1972)).
If the plaintiff is relying on a fraud on the market theory, additional
instruction may be warranted. In such cases, the complained-of misrepre-
sentation or omission must have actually affected the market price of the

77
7.1 PATTERN JURY INSTRUCTIONS

As to the fifth and sixth elements of the claim, eco-

nomic loss and loss causation, Plaintiff [name] must
show that [he/she] actually suffered an economic injury,
and that there is a causal connection between the mis-
representation and that economic injury.8

If you find for Plaintiff [name] on [his/her] claim,

you must then consider the issue of the amount of
money damages to award. You should award Plaintiff
[name] an amount of money [he/she] shows by a
preponderance of the evidence to be fair and adequate
compensation for the loss that proximately resulted
from Defendant [name]’s wrongful conduct that you
have found.

(Insert damages elements as appropriate.)

stock. See Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 662 (5th Cir.
2004).
8
Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179, 2186
(2011).

78
 8

RICO
Note

A plaintiff may bring a private civil action under the provi-

sions of the Racketeer Influenced and Corrupt Organizations Act
(RICO), alleging a violation of Title 18 U.S.C. § 1962(a), (b), (c) or
(d). The instructions for RICO claims set out in the 2009 Pattern
Jury Instructions are not included here because the cases are so
rarely tried that there is no recent set of instructions in this circuit
the Committee viewed as sufficiently reliable to include in the
revised Instructions. For guidance, see Eleventh Circuit Pattern
Jury Instructions (Civil Cases), Civil RICO General Instruction 5.1
(2005), and 3B Kevin F. O’Malley, Jay E. Grenig & Hon. William
C. Lee, Fed. Jury Practice & Instructions §§ 161.01–161.100 (5th
ed. 2001 & Supp. 2012).

79
 9

PATENT INFRINGEMENT (35 U.S.C.

§ 271, ET SEQ.)
Comment

The patent infringement instructions included in previous edi-

tions of Fifth Circuit Pattern Jury Instructions are out of date, and
courts and parties should not rely upon them.

The following sources may be helpful in drafting jury charges

in patent cases. In consulting any of these materials, the user
should take into account the Leahy-Smith America Invents Act,
which was signed into law on September 16, 2011.

Federal Circuit Bar Association, Model Patent Jury Instruc-

tions (2010), available at http://federalevidence.com/pdf/JuryInst/F
BA_Patent_Jury_Instr2010.pdf.

The National Jury Instruction Project, Model Patent Jury

Instructions (2009), available at http://federalevidence.com/pdf/Jur
yInst/Nat_Patent_JI_2009.pdf.

American Intellectual Property Law Association, Guide to

Model Patent Jury Instructions (2007), available at http://federale
vidence.com/pdf/JuryInst/AIPLA_Patent_Inst_2007.pdf.

American Bar Association Section of Litigation, Model Jury

Instructions: Patent Litigation (A.B.A., Chicago, Ill., 2005).

Seventh Circuit Pattern Jury Instructions (Civil) (2009),

Instructions 11.1–11.4, pp. 188–261. Instruction 11.1 provides pre-
liminary instructions, Instruction 11.2 deals with infringement,
Instruction 11.3 covers invalidity, and Instruction 11.4 concerns
damages.

Northern District of California, Model Patent Jury Instruc-

tions (2011), available at http://www.cand.uscourts.gov/juryinstruc
tions

80
 10

CIVIL RIGHTS — 42 U.S.C. § 1983

Overview

The body of law dedicated to 42 U.S.C. § 1983 is immense.

Small factual differences can dramatically affect the legal stan-
dards and jury instructions that apply in a case. For example, the
instruction in an inadequate-medical-care case depends on whether
the plaintiff is a convicted inmate or pretrial detainee, whether the
claim is based on a condition of confinement or an episodic act, and
whether the defendant is an individual, supervisor, policymaker,
or municipality.

Due to the variety of potential claims and standards, the Com-

mittee has elected to provide examples based on the claims that
most frequently arise. The instructions are heavily footnoted to
highlight when alternatives may be necessary, but the options are
not exhaustive. The facts of a given case will dictate whether these
or other instructions are appropriate. Separate instructions for is-
sues such as supervisory liability, municipal liability, qualified im-
munity, and other recurring claims and defenses are also provided,
to be inserted into the basic-elements instructions as needed.

81
10.1 PATTERN JURY INSTRUCTIONS

10.1 42 U.S.C. Section 1983 (Unlawful Seizure—

Unlawful Search—Excessive Force)1

Plaintiff [name] claims that Defendant [name]

violated [one or more of] the following constitutional
right[s]:

1. the constitutional protection from unreasonable

arrest or other “seizure”;2

2. the constitutional protection from unreasonable

search of one’s home or dwelling; [and/or]

3. the constitutional protection from the use of

excessive force during an arrest.

To recover damages for this [these] alleged constitu-

tional violation[s], Plaintiff [name] must prove by a
preponderance of the evidence that:

1. Defendant [name] committed an act that

violated the constitutional right[s] Plaintiff
[name] claims [was] [were] violated;3 and
1
The Fifth Circuit has expressly approved Instructions 10.1 and
10.3, explaining that the instructions on excessive force and qualified im-
munity “represent an admirable summary, based on Supreme Court and
Fifth Circuit precedent, of the elements of a plaintiff’s claim that must be
proven at trial.” Mason v. Faul, 929 F.3d 762, 765 (5th Cir. 2019) (per
curiam), cert. denied, — S. Ct. — (2020).
2
In addition to arrests, the law recognizes other types of stops as
“seizures.” See Brendlin v. California, 551 U.S. 249, 255 (2007) (traffic
stop is a seizure); United States v. Wise, 877 F.3d 209, 222 (5th Cir. 2017)
(Terry stop is a seizure).
3
Whether the defendant was a state actor or acted “under color of
law” are obviously essential elements. But these elements are often
conceded or established before trial. If so, eliminating reference to them
avoids unnecessary confusion. If not conceded, or if the court wishes to
include them, then the second element should read as follows: “That in so
doing Defendant [name] acted ‘under color’ of the authority of the State of
—————.” Further instructions defining these elements are found in Pattern
Jury Instruction 10.2.

82
CIVIL RIGHTS — 42 U.S.C. § 1983 10.1
2. Defendant [name]’s act[s] [was] [were] the
cause of Plaintiff [name]’s damages.4,5

The first right Plaintiff [name] claims Defendant

[name] violated is the Fourth Amendment right to be
protected from an unreasonable seizure. 6 Plaintiff
[name] claims that the way Defendant [name] [arrested
or stopped] [him/her] on [date] violated [his/her]
constitutional rights.7 To establish this claim, Plaintiff
[name] must show that the [arrest or stop] was
unreasonable.8
4
In an appropriate case, the court may wish to instruct the jury that
actual compensable injury is not necessary and that nominal or punitive
damages may be available for the deprivation of a constitutional right. See
Carey v. Piphus, 435 U.S. 247, 266 (1978). There are also cases in which a
nominal-damages instruction would be appropriate but not a punitive-
damages instruction. See Williams v. Kaufman Cty., 352 F.3d 994, 1015
(5th Cir. 2003) (observing that punitive damages may be awarded “only
when the defendant’s conduct is motivated by evil intent or demonstrates
reckless or callous indifference to a person’s constitutional rights”) (cita-
tions and internal quotation marks omitted).
5
If further instruction on this point is necessary, the court may use
the following language:
The plaintiff must prove by a preponderance of the evidence that the
act or failure to act by the defendant was a cause-in-fact of the dam-
ages plaintiff suffered. An act or a failure to act is a cause-in-fact of
an injury or damages if it appears from the evidence that the act or
omission played a substantial part in bringing about or actually
causing the injury or damages. The plaintiff must also prove by a
preponderance of the evidence that the act or failure to act by the
defendant was a proximate cause of the damages plaintiff suffered.
An act or omission is a proximate cause of the plaintiff’s injuries or
damages if it appears from the evidence that the injury or damages
was a reasonably foreseeable consequence of the act or omission.
6
See Albright v. Oliver, 510 U.S. 266, 270–71 (1994) (rejecting a
Fourteenth Amendment due process analysis applied to malicious prose-
cution because the Fourth Amendment more specifically addresses the is-
sue); see also Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d
395, 411 & n.22 (5th Cir. 2002) (applying Albright to unlawful search
claim).
7
Some cases may present the question whether the plaintiff was
actually seized, which invokes additional tests. See Ware v. Reed, 709 F.2d
345, 349 n.7 (5th Cir. 1983).
8
The text of Section 1983 does not expressly state that the defen-
dant’s acts must be intentional. That said, the Fifth Circuit has observed:
“The Supreme Court and this circuit have long held that Fourth Amend-

83
10.1 PATTERN JURY INSTRUCTIONS

(If an unreasonable arrest is alleged, give the fol-

lowing language:)

A warrantless arrest such as the one involved in

this case is considered unreasonable under the Fourth
Amendment when, at the moment of the arrest, there
is no probable cause for the defendant to reasonably
believe that a crime has been or is being committed.9
Probable cause does not require proof beyond a reason-
able doubt, but only a showing of a fair probability of
criminal activity.10 It must be more than bare suspicion,
but need not reach the 50% mark.11

Finally, the reasonableness of an arrest must be

judged based on what a reasonable officer would do
under the circumstances, and does not consider Defen-
dant [name]’s state of mind. The question is whether a
reasonable officer would believe that a crime was, or
was being, committed based on the facts available to
that officer at the time of the arrest.12,13,14

ment violations occur only through intentional conduct.” Watson v. Bryant,

532 F. App’x. 453, 457 (5th Cir. 2013). If there is an issue whether the acts
were intentional, the court may consider cases like Brower v. County of
Inyo, 489 U.S. 593, 597 (1989) and Young v. City of Killeen, 775 F.2d 1349,
1353 (5th Cir. 1985).
9
Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
10
Illinois v. Gates, 462 U.S. 213, 238 (1983).
11
United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999).
12
Devenpeck, 543 U.S. at 152; Evett v. DETNTFF, 330 F.3d 681, 688
(5th Cir. 2003).
13
Probable cause is the touchstone of a false-arrest claim. See Haggerty
v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004) (“To ultimately prevail
on his section 1983 false arrest/false imprisonment claim, [plaintiff] must
show that [defendant] did not have probable cause to arrest him.”). But
“[t]o the extent that the underlying facts are undisputed, [the court] may
resolve questions of probable cause as questions of law.” Piazza v. Mayne,
217 F.3d 239, 246 (5th Cir. 2000). This instruction applies when there is a
genuine dispute of material fact that precludes a legal ruling on probable
cause. See Harper v. Harris Cty., 21 F.3d 597, 602 (5th Cir. 1994) (affirm-
ing decision to send probable cause issue to jury and noting that although
the issue can be a legal question, “such is not the case where there exist
material factual disputes . . . .”). When lack of probable cause has been
conceded, the instruction is not necessary. Ware, 709 F.2d at 349 n.7.

84
CIVIL RIGHTS — 42 U.S.C. § 1983 10.1
(If an unreasonable stop is alleged, give the fol-
lowing language:)

A stop such as the one involved in this case is

considered unreasonable under the Fourth Amendment
if the officer lacked reasonable suspicion that the seized
person was committing a crime.15 “Reasonable suspicion”
means the officer can point to specific and articulable
facts that reasonably warrant the inference that a par-
ticular person is committing a crime.16 Even if reason-
able suspicion exists, a stop must be brief, minimally
intrusive, and reasonably related in scope to the
justification for its initiation.17

The reasonableness of a stop must be judged based

on what a reasonable officer would do under the cir-
cumstances, and does not consider Defendant [name]’s
state of mind.

To help you determine whether Defendant [name]

had probable cause to arrest Plaintiff [name], I will
now instruct you on the elements of the crime for which
[he/she] was arrested. (Specify state criminal statute for
underlying offense.)

If you find that Plaintiff [name] has proved by a

preponderance of the evidence that Defendant [name]
lacked probable cause to make the arrest on [date], then

Other jurisdictions treat this as a mixed question of law and fact that
would be decided on special interrogatories.
14
Differences in context, such as whether the arrest was with or
without a warrant, or whether the arrest was inside the home or in a dif-
ferent location, can change the analysis. See, e.g., Groh v. Ramirez, 540
U.S. 551, 558 (2004) (discussing need to specify items to be seized); Kalina
v. Fletcher, 522 U.S. 118, 129–30 (1997) (discussing probable cause for is-
suing warrant).
15
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 208–09 (5th Cir. 2009)
(citing Terry v. Ohio, 392 U.S. 1 (1968)).
16
See id. at 209 (citing Terry, 392 U.S. at 21).
17
Id. (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 880–81
(1975)).

85
10.1 PATTERN JURY INSTRUCTIONS

Defendant [name] violated Plaintiff [name]’s constitu-

tional right to be free from unreasonable arrest or
“seizure” [and your verdict will be for Plaintiff [name]
on this claim] or [and you must then consider whether
Defendant [name] is entitled to qualified immunity,
which is a bar to liability that I will explain later] (give
first bracketed language if there is no qualified-
immunity issue; give second if there is such an issue
along with the qualified-immunity instruction at Pattern
Jury Instruction 10.3). If Plaintiff [name] failed to make
this showing, then the arrest was constitutional, and
your verdict will be for Defendant [name] on the
unreasonable-arrest claim.

The second right Plaintiff [name] claims Defendant

[name] violated is Plaintiff [name]’s Fourth Amend-
ment right to be protected from unreasonable searches
of [his/her] home.18,19 The Fourth Amendment to the
Constitution of the United States protects against “un-
reasonable searches,” and the right to be free from un-
reasonable government intrusion in one’s own home is
at the very core of the Fourth Amendment’s protection.
Warrantless searches of a person’s home are presumed
to be unreasonable unless: (1) the government obtains
consent to search; or (2) probable cause and exigent cir-
18
This instruction addresses home searches. Different rules apply in
other settings like schools, see, e.g., Safford Unified Sch. Dist. No. 1 v.
Redding, 557 U.S. 364, 370–71 (2009) (applying “reasonable suspicion”
standard to searches by school officials); government workplaces, see, e.g.,
City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010); or vehicles, see, e.g.,
Maryland v. Dyson, 527 U.S. 465, 467 (1999) (“[I]n cases where there was
probable cause to search a vehicle ‘a search is not unreasonable if based
on facts that would justify the issuance of a warrant, even though a war-
rant has not been actually obtained.’ ” (emphasis omitted)); and for
searches incident to a lawful arrest, see, e.g., United States v. Curtis, 635
F.3d 704, 711–12 (5th Cir. 2011).
19
This instruction does not address seizures pursuant to warrants.
See, e.g., Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir.
2010) (addressing chain of causation with warrants); Hernandez v. Ter-
rones, 397 F. App’x. 954, 967 (5th Cir. 2010) (addressing false statements
in supporting affidavits).

86
CIVIL RIGHTS — 42 U.S.C. § 1983 10.1
cumstances justify the search.20,21 The burden is on
Plaintiff [name] to prove that the search was
unreasonable.

The first question is whether there was consent to

search. A valid consent to search must be freely and
voluntarily given and the individual who gives consent
must have authority to do so. Silence or passivity can-
not form the basis for consent to enter. An occupant’s
silence, passivity, or other indication of acquiescence to
a show of lawful authority is not enough to show volun-
tary consent.22 Officers may search only areas for which
consent was given, and may not search areas for which
no consent was given.23,24

If there is no consent, a warrantless search is still

permissible if probable cause and exigent circumstances
exist. Probable cause for a warrantless search exists
20
Groh, 540 U.S. at 564; see also Gates v. Tex. Dep’t of Protective &
Regulatory Servs., 537 F.3d 404, 420 (5th Cir. 2008) (citation omitted).
There is no need to instruct the jury on both consent and exigent circum-
stances if one of the exceptions is inapplicable.
21
Although consent and exigent circumstances are the most frequent
exceptions, the court should consider whether the special needs doctrine
applies. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (permit-
ting exceptions to the warrant and probable-cause requirements for a
search when special needs, beyond the normal needs of law enforcement,
make those requirements impracticable) (cited in Illinois v. Caballes, 543
U.S. 405, 425 (2005)).
22
Roe, 299 F.3d at 402 & n.5; Gates, 537 F.3d at 420–21.
23
United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002).
24
There are a variety of issues that may require further instruction.
For example, if authority is given by someone other than the plaintiff, it
may be necessary to give further instructions consistent with Georgia v.
Randolph, 547 U.S. 103, 109 (2006). If voluntariness is disputed, the jury
may need to be instructed on the six nonexclusive factors set out in United
States v. Kelley:
(1) the voluntariness of the defendant’s custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of the
defendant’s cooperation with the police; (4) the defendant’s aware-
ness of his right to refuse to consent; (5) the defendant’s education
and intelligence; and (6) the defendant’s belief that no incriminating
evidence will be found.
981 F.2d 1464, 1470 (5th Cir. 1993).

87
10.1 PATTERN JURY INSTRUCTIONS

when the facts and circumstances within an officer’s

knowledge, and of which [he/she] had reasonably
trustworthy information, are sufficient for a reasonable
officer to believe that an offense has been or is being
committed, and that evidence bearing on that offense
will be found in the place to be searched.25 Whether
probable cause exists is based on what a reasonable of-
ficer would do under the circumstances and does not
consider Defendant [name]’s state of mind.

Exigent circumstances exist when the situation

makes the needs of law enforcement so compelling that
the warrantless search is objectively reasonable.26 One
such exigency is [specify relevant example of such a
circumstance, such as the need to prevent the imminent
destruction of evidence].27,28

If you find that Plaintiff [name] has proved by a

preponderance of the evidence that Defendant [name]
conducted an unreasonable search of Plaintiff [name]’s
home, then Defendant [name] violated Plaintiff [name]’s
constitutional rights [and your verdict will be for
Plaintiff [name] on this claim] or [and you must then
consider whether Defendant [name] is entitled to quali-
fied immunity, which is a bar to liability that I will
explain later] (give first bracketed language if there is
no qualified-immunity issue; give second if there is such
an issue along with the qualified immunity-instruction
at Pattern Jury Instruction 10.3). If Plaintiff [name]
failed to make this showing, then the search was not
25
Safford Unified Sch. Dist. No. 1, 557 U.S. at 370–71.
26
Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (citation omitted);
see also United States v. Menchaca-Castruita, 587 F.3d 283, 289–90 (5th
Cir. 2009) (providing nonexhaustive list).
27
There are, of course, other examples of exigent circumstances, many
of which are summarized in Brigham City, 547 U.S. at 403. The instruc-
tion should list the exigency that best fits the facts of the case.
28
If exigent circumstances are raised by the evidence, an instruction
that the police cannot create the exigency may be appropriate. Kentucky v.
King, 563 U.S. 452, 460–61 (2011).

88
CIVIL RIGHTS — 42 U.S.C. § 1983 10.1
unconstitutional, and your verdict will be for Defendant
[name] on the unreasonable-search claim.

Finally, Plaintiff [name] claims Defendant [name]

violated the Fourth Amendment by using excessive
force in making the arrest on [date]. The Constitution
prohibits the use of unreasonable or excessive force
while making an arrest, even when the arrest is
otherwise proper. To prevail on a Fourth Amendment
excessive-force claim, Plaintiff [name] must prove the
following by a preponderance of the evidence:

1. an injury;29

2. that the injury resulted directly30 from the use

of force that was excessive to the need; and

3. that the excessiveness of the force was objec-

tively unreasonable.31

To determine whether the force used was reason-

able under the Fourth Amendment, you must carefully
balance the nature and quality of the intrusion on
29
In many cases, a sufficient injury may be undisputed. But with
lesser injuries, the court should consider the Fifth Circuit’s analysis in
cases like Brown v. Lynch, 524 F. App’x. 69, 79 (5th Cir. 2013) (“And as
long as a plaintiff has suffered ‘some injury,’ even relatively insignificant
injuries and purely psychological injuries will prove cognizable when
resulting from an officer’s unreasonably excessive force.”) (citing primarily
Ikerd v. Blair, 101 F.3d 430, 434–35 (5th Cir.1996); Flores v. City of Palacios,
381 F.3d 391, 399 (5th Cir. 2004)).
30
In Johnson v. Morel, the Fifth Circuit stated that the injury must
result “directly and only” from the use of excessive force. 876 F.2d 477,
480 (5th Cir. 1989) (emphasis added). That language routinely appears in
Fifth Circuit cases. See, e.g., Hogan v. Cunningham, 722 F.3d 725, 734
(5th Cir. 2013). Despite this history, the Committee omitted the word
“only” because the language does not carry the meaning that a lay juror
would give it. In Dunn v. Denk, the Fifth Circuit explained that the “direct-
and-only” language was not meant to suggest that a plaintiff who was
uniquely susceptible to injury could not recover. 79 F.3d 401, 403 (5th Cir.
1996). The court explained that the Johnson language merely establishes
that “compensation be for an injury caused by the excessive force and not
a reasonable force.”
31
Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).

89
10.1 PATTERN JURY INSTRUCTIONS

Plaintiff [name]’s right to be protected from excessive

force against the government’s right to use some degree
of physical coercion or threat of coercion to make an
arrest. Not every push or shove, even if it may later
seem unnecessary in hindsight, violates the Fourth
Amendment. In deciding this issue, you must pay care-
ful attention to the facts and circumstances, including
the severity of the crime at issue, whether [Plaintiff
[name]] [the suspect] posed an immediate threat to the
safety of the officers or others, and whether [he/she]
was actively resisting or attempting to evade arrest.32,33

Finally, [as with the other rights I have discussed],

the reasonableness of a particular use of force is based
on what a reasonable officer would do under the cir-
cumstances and not on this defendant’s state of mind.
You must decide whether a reasonable officer on the
scene would view the force as reasonable, without the
benefit of 20/20 hindsight. This inquiry must take into
account the fact that police officers are sometimes 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.34

If you find that Plaintiff [name] has proved by a

preponderance of the evidence that the force used was
objectively unreasonable, then Defendant [name]
violated Plaintiff [name]’s Fourth Amendment protec-
tion from excessive force [and your verdict will be for
Plaintiff [name] on this claim] or [and you must then
consider whether Defendant [name] is entitled to quali-
fied immunity, which is a bar to liability that I will
32
See generally Graham v. Connor, 490 U.S. 386, 396 (1989).
33
This instruction should be revised in a deadly force case. See, e.g.,
Tennessee v. Garner, 471 U.S. 1, 7 (1985). The “[u]se of deadly force is not
unreasonable when an officer would have reason to believe that the
suspect poses a threat of serious harm to the officer or others.” Mace v.
City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003).
34
See generally Graham, 490 U.S. at 396.

90
CIVIL RIGHTS — 42 U.S.C. § 1983 10.1
explain later] (give first bracketed language if there is
no qualified-immunity issue; give second if there is such
an issue along with the qualified-immunity instruction
at Pattern Jury Instruction 10.3). If Plaintiff [name]
failed to make this showing, then the force was not un-
constitutional, and your verdict will be for Defendant
[name] on the excessive-force claim.

[Insert qualified-immunity instruction (Pattern Jury

Instruction 10.3) if appropriate.35]

[Insert supervisor/municipal-liability instruction

(Pattern Jury Instruction 10.4) if appropriate.]

[Insert standard damages instructions and

emotional-distress instructions (Pattern Jury Instruc-
tion 10.13) if appropriate.]

35
The qualified-immunity issue “ordinarily should be decided by the
court long before trial . . . .” McCoy v. Hernandez, 203 F.3d 371, 376 (5th
Cir. 2000). But “if the issue is not decided until trial the defense goes to
the jury which must then determine the objective legal reasonableness of
the officers’ conduct.” McCoy, 203 F.3d at 376 (citing Snyder v. Trepagnier,
142 F.3d 791, 799 (5th Cir. 1998)).

91
10.2 PATTERN JURY INSTRUCTIONS

10.2 Under Color of Law

(If the parties stipulate that the action was

under color of law):

In this case the parties have stipulated [agreed]

that Defendant [name] acted “under color” of state law,
and you must accept that fact as proved.

(If the parties dispute whether the action was

under color of law):

“Under color” of state law means under the pretense

of law. An officer’s acts while performing [his/her] of-
ficial duties are done “under color” of state law whether
those acts are in line with [his/her] authority or
overstep such authority. An officer acts “under color” of
state law even if [he/she] misuses the power [he/she]
possesses by virtue of a state law or because [he/she] is
clothed with the authority of state law. An officer’s acts
that are done in pursuit of purely personal objectives
without using or misusing [his/her] authority granted
by the state are not acts done “under color” of state
law.1

1
Bustos v. Martini Club, Inc., 599 F.3d 458, 464 (5th Cir. 2010);
Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002).

92
CIVIL RIGHTS — 42 U.S.C. § 1983 10.3
10.3 Qualified Immunity1

As to each claim for which Plaintiff [name] has

proved each essential element, you must consider
whether Defendant [name] is entitled to what the law
calls “qualified immunity.” Qualified immunity bars a
defendant’s liability even if [he/she] violated a plaintiff’s
constitutional rights. Qualified immunity exists to give
government officials breathing room to make reason-
able but mistaken judgments about open legal
questions. Qualified immunity provides protection from
liability for all but the plainly incompetent government
[officers/officials], or those who knowingly violate the
law. 2 It is Plaintiff [name]’s burden to prove by a
preponderance of the evidence that qualified immunity
does not apply in this case.3

Qualified immunity applies if a reasonable [officer/

1
Instructing a jury on qualified immunity can present difficult—and
often fact-based—decisions for the court. The qualified-immunity issue
“ordinarily should be decided by the court long before trial . . . .” McCoy
v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000). But “if the issue is not
decided until trial the defense goes to the jury which must then determine
the objective legal reasonableness of the officers’ conduct.” McCoy, 203
F.3d at 376 (citing Snyder v. Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998)).
In most cases in which qualified immunity remains an issue at trial, the
court will have found some underlying factual dispute that precluded a
pretrial ruling. Sometimes the factual disputes are easy to define and lend
themselves to a clean instruction on what constitutes clearly established
law (e.g., whether the suspect had a gun). It seems inevitable in those cir-
cumstances that the instruction on what constitutes clearly established
law may appear to be peremptory. Other cases present more complicated
fact patterns that make it difficult to frame the issues and instruct on the
clearly established law. There is no way to draft a pattern instruction that
covers every scenario. The pattern instruction provides only the basic law
and leaves it to the judge to craft a complete instruction that fits the facts
of the case. Nevertheless, the Fifth Circuit has expressly approved the
language in Instruction 10.3. See Mason v. Faul, 929 F.3d 762, 765 (5th
Cir. 2019) (per curiam) (upholding jury charge on excessive force and
qualified immunity where the questions “were precisely and almost
verbatim stated according to the Fifth Circuit Pattern Jury Instruction
(Civil) 10.1 and 10.3.”), cert. denied, — S. Ct. — (2020).
2
Malley v. Briggs, 475 U.S. 335, 341 (1986).
3
Jimenez v. Wood Cty., 621 F.3d 372, 378 (5th Cir. 2010) (observing
that burden is on plaintiff once defendant raises defense).

93
10.3 PATTERN JURY INSTRUCTIONS

official] could have believed that [specify the disputed

act, such as the arrest or the search] was lawful in light
of clearly established law and the information Defen-
dant [name] possessed.4 But Defendant [name] is not
entitled to qualified immunity if, at the time of [specify
the disputed act], a reasonable [officer/official] with the
same information could not have believed that [his/her]
actions were lawful. 5 [Law enforcement officers/
government officials] are presumed to know the clearly
established constitutional rights of individuals they
encounter.

In this case, the clearly established law at the time

was that [specify what constitutes the clearly estab-
lished law.6]

If, after considering the scope of discretion and

responsibility generally given to [specify type of officers/
officials] in performing their duties and after consider-
ing all of the circumstances of this case as they would
have reasonably appeared to Defendant [name] at the
time of the [specify disputed act], you find that Plaintiff
[name] failed to prove that no reasonable [officer/
official] could have believed that the [specify disputed
act] was lawful, then Defendant [name] is entitled to
qualified immunity, and your verdict must be for
Defendant [name] on those claims. But if you find that
Defendant [name] violated Plaintiff [name]’s constitu-
tional rights and that Defendant [name] is not entitled
4
Wilson v. Layne, 526 U.S. 603, 615 (1999).
5
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2086 (2011) (citations omitted).
6
“[W]hat ‘clearly established’ means in this context depends largely
upon the level of generality at which the relevant legal rule is to be
identified. ‘Clearly established’ for purposes of qualified immunity means
that the contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Wilson,
526 U.S. at 614–15 (citations omitted and punctuation edited). This does
not mean “that an official action is protected by qualified immunity unless
the very action in question has previously been held unlawful,” but it
means “that in the light of pre-existing law the unlawfulness must be
apparent.” Wilson, 526 U.S. at 614–15.

94
CIVIL RIGHTS — 42 U.S.C. § 1983 10.3
to qualified immunity as to that claim, then your verdict
must be for Plaintiff [name] on that claim.

95
10.4 PATTERN JURY INSTRUCTIONS

10.4 Liability of Supervisor

Plaintiff [name] is suing Defendant [name of

supervisor]. A supervisory officer, like Defendant [name
of supervisor], cannot be held liable merely because
[his/her] subordinate [officer/official] violated someone’s
constitutional rights. To prove [his/her] claim against
Defendant [name of supervisor], Plaintiff [name] must
show that Defendant [name of supervisor]’s conduct
caused the denial of [his/her] constitutional rights.1

In this case, Plaintiff [name] contends that Defen-

dant [name of supervisor] violated [his/her] constitu-
tional rights by implementing an unconstitutional
policy, specifically, by [specify act or omission alleged].2

To prevail in [his/her] claim against Defendant

[name of supervisor], Plaintiff [name] must prove by a
preponderance of the evidence that:

1. a subordinate of Defendant [name of supervi-

sor] violated Plaintiff [name]’s constitutional
rights;

2. Defendant [name of supervisor] [specify alleged

policy adopted or not adopted];

3. The [alleged adoption/failure to adopt] caused

the violation of the Plaintiff [name]’s rights;
and
1
Marks v. Hudson, 933 F.3d 481, 490 (5th Cir. 2019).
2
Some claims mention acquiescence as a basis for liability under a
theory of personal involvement. Although addressed in the Bivens context,
Ashcroft v. Iqbal leaves doubt whether such a claim exists in the § 1983
setting. 556 U.S. 662, 677 (2009). However, the Fifth Circuit has cited
with approval case law supporting acquiescence as a theory of liability.
See Turner v. Lt. Driver, 848 F.3d 678, 696 n.88 (5th Cir. 2017).

96
CIVIL RIGHTS — 42 U.S.C. § 1983 10.4
4. Defendant [name of supervisor] [adopted the
policy/failed to adopt the policy] with deliberate
indifference.3

For an [officer/official] to act with deliberate indif-

ference, [he/she] must be: (1) aware of facts from which
the inference could be drawn that a substantial risk of
serious harm or a violation of constitutional rights ex-
ists; and (2) must actually draw that inference. Deliber-
ate indifference requires a showing of more than
negligence or even gross negligence.4 Accordingly, for a
supervisor to act with deliberate indifference, [he/she]
must usually know about a pattern of similar
violations.5 To show deliberate indifference based on a
single incident, it must have been apparent or obvious
that a constitutional violation was the highly predict-
able consequence of the particular policy.6

[To satisfy the deliberate indifference prong of a

failure-to-train claim, Plaintiff [name] must prove that
Defendant [name of supervisor] knew or should have
known that a particular omission in the training
program would cause employees to violate the constitu-
tional rights of members of the public they encounter,
but Defendant [name of supervisor] nevertheless chose
to retain that program. To prove deliberate indifference
in this way, Plaintiff [name] must show a pattern of
similar constitutional violations by improperly trained
employees. A single incident is generally insufficient to
show deliberate indifference unless the actor was
provided no training whatsoever.7]

3
Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011).
4
Estate of Davis ex rel. McCully v. City of North Richland Hills, 406
F.3d 375, 381–82 (5th Cir. 2005).
5
Romero v. Brown, 937 F.3d 514, 523 (5th Cir. 2019).
6
Alvarez v. City of Brownsville, 904 F.3d 382, 391 (5th Cir. 2018).
7
Pena v. City of Rio Grande City, 879 F.3d 613, 624 (5th Cir. 2018).

97
10.5 PATTERN JURY INSTRUCTIONS

10.5 Municipal Liability

In addition to [his/her] claims against [officers/

officials], Plaintiff [name] is suing [specify municipality
sued]. A [city/county] is not liable for the actions of its
employees unless the constitutional violation was
caused by a [city/county] policy or custom.1

To prevail on [his/her] claim against the [city/

county], Plaintiff [name] must prove by a preponder-
ance of the evidence that:

1. an official policy or custom existed;

2. a policymaker for the [city/county] knew or

should have known about the policy or custom;2

3. the policymaker was deliberately indifferent;

and

4. the policy or custom was the moving force lead-

ing to the constitutional violation.

A “policy” can be a policy statement, ordinance,

regulation, or decision officially adopted and promul-
gated by the [city/county]’s officers.3

A “custom” is a persistent, widespread practice of

[city/county] officials or employees that, although not
formally adopted, is so common and well-settled that it
fairly represents [city/county] policy. But to show a
custom, Plaintiff [name] must prove that either the
[city/county]’s governing body or some official with
1
Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002).
2
Policymaker status is a question of law. See, e.g., Tharling v. City of
Port Lavaca, 329 F.3d 422, 427 (5th Cir. 2003).
3
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).

98
CIVIL RIGHTS — 42 U.S.C. § 1983 10.5
policymaking authority knew or should have known
about the custom.4

For an official to act with deliberate indifference,

the official must both be aware of facts from which the
inference could be drawn that a substantial risk of seri-
ous harm exists or a violation of constitutional rights
exists, and [he/she] must also draw the inference.5

4
Pineda, 291 F.3d at 328.
5
Estate of Davis ex rel. McCully v. City of North Richland Hills, 406
F.3d 375, 381–82 (5th Cir. 2005).

99
10.6 PATTERN JURY INSTRUCTIONS

10.6 First Amendment Retaliation—Public

Employees

Plaintiff [name] claims that Defendant [name]

violated [his/her] rights under the First Amendment to
the United States Constitution. More specifically,
Plaintiff [name] claims that Defendant [name] [specify
the allegedly adverse action] in retaliation for Plaintiff
[name]’s decision to exercise [his/her] First Amendment
free-speech right when [he/she] [specify the speech].

The First Amendment protects a public employee’s

right, in certain circumstances, to speak as a citizen ad-
dressing matters of public concern.1

To recover damages for this alleged constitutional

violation, Plaintiff [name] must prove by a preponder-
ance of the evidence that:

1. Plaintiff [name] suffered an adverse employ-

ment action;2

2. Plaintiff [name]’s speech motivated3 Defendant

[name]’s decision to [specify action] Plaintiff
[name]; and
1
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
2
Whether the defendant acted “under color of law” is obviously an
essential element of First Amendment retaliation. But this element is
often conceded. If so, eliminating reference to it may avoid unnecessary
confusion. If it is not conceded, or if the court wishes to include it, then
the first element should read, “That the actions of Defendant [name] were
‘under color’ of the authority of the State of —————.” Further instructions
on this element are in Pattern Jury Charge 10.2.
3
Defendant’s motivation may be based on a factual mistake about
Plaintiff’s behavior. Heffernan v. City of Paterson, New Jersey, 136 S. Ct.
1412 (2016). In Heffernan, the United States Supreme Court held that an
employee could bring a First Amendment retaliation claim against an
employer who took an adverse action against the employee for protected
speech that the employer mistakenly attributed to the employee. 136 S.
Ct. at 1418.

100
CIVIL RIGHTS — 42 U.S.C. § 1983 10.6
3. the [specify action] caused Plaintiff [name]’s
damages.4

If Plaintiff [name] fails to prove any of these elements,

you must find for Defendant [name].

(If the parties stipulate that the employment

action was adverse):

[The parties have stipulated (agreed) that the

[specify action] was “adverse.” You must accept that
fact as proved.]

OR
4
These elements are based on cases such as Oscar Renda Contract-
ing, Inc. v. City of Lubbock, 577 F.3d 264, 271 (5th Cir. 2009) (listing these
elements). Two points must be noted.
First, the instructions set out the elements of the prima facie case
excluding the elements that should be decided as a matter of law before
trial. For example, there is a threshold issue under Garcetti whether the
plaintiff spoke as a citizen or pursuant to official duty. 547 U.S. at 419; see
also Lane v. Franks, 573 U.S. 228 (2014) (explaining Garcetti and noting
that “the mere fact that a citizen’s speech concerns information acquired
by virtue of his public employment does not transform that speech into
employee—rather than citizen—speech. The critical question under Garc-
etti is whether the speech at issue is itself ordinarily within the scope of
an employee’s duties, not whether it merely concerns those duties”). The
prima facie case elements listed in summary judgment opinions also
include the need to prove that the speech was protected under Pickering v.
Board of Education, 391 U.S. 563, 568 (1968). This is a question of law.
Buchanan v. Alexander, 919 F.3d 847, 853 (5th Cir. 2019). There may be
instances, however, in which there are disputes about historical facts that
should be submitted to the jury. For example, in Kinney v. Weaver, 367
F.3d 337 (5th Cir. 2004), the Fifth Circuit addressed the Pickering issues
as a mixed law-and-fact question, noting that “the governmental interests
at stake in a particular case necessarily depend on the facts of the case.”
Id. at 363. If material historical facts are disputed, the court should
consider submitting them to the jury for resolution.
Second, a more frequent articulation of the causation element is
that the speech must be a “substantial or motivating factor.” Winn v. City
of New Orleans, 620 F. App’x 270 (5th Cir. 2015). This language is consis-
tent with Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, in which the
Supreme Court of the United States observed that causation first requires
proof that the speech was a ‘‘ ‘substantial factor’ or to put it in other
words, that it was a ‘motivating factor.’ ” 429 U.S. 274, 287 (1977). The
pattern uses the simple language that the speech must “motivate,” but
then explains the element consistent with Mt. Healthy.

101
10.6 PATTERN JURY INSTRUCTIONS

(If the parties dispute whether the employ-

ment action was adverse):

[As to the first element—whether the [specify ac-

tion] was “adverse”—adverse employment actions
include discharges, demotions, refusals to hire, refusals
to promote, and reprimands.5 They can also include
transfers if they would be equivalent to a demotion. To
be equivalent to a demotion, a transfer need not result
in a decrease in pay, title, or grade; it can be a demo-
tion if the new position proves objectively worse than
the former position, such as being less prestigious or
less interesting or providing less room for
advancement.6,7]

As to the second element, to prove Plaintiff [name]’s

speech motivated Defendant [name]’s [specify action],
Plaintiff [name] must show the speech was a substantial
factor. In other words, Plaintiff [name] must show that
[his/her] speech was a motivating factor in Defendant
[name]’s decision to [specify action].8 Plaintiff [name]
5
Juarez v. Aguilar, 666 F.3d 325 (5th Cir. 2011) (citing Sharp v. City
of Houston, 164 F.3d 923, 933 (5th Cir. 1999)).
6
Sharp, 164 F.3d at 933.
7
The instruction is based on numerous cases decided by the Fifth
Circuit. See, e.g., Sharp, 164 F.3d at 933. But in Burlington North and
Santa Fe Railway Co. v. White, the Supreme Court adopted a different
test in the Title VII context. 548 U.S. 53, 68 (2006). To date, the Fifth
Circuit has not adopted the Burlington standard for adverse employment
actions in the First Amendment context. Johnson v. Halstead, 916 F.3d
410, 422 n.5 (5th Cir. 2019) (“It is not clearly established whether Burling-
ton’s ‘materially adverse’ standard applies to retaliation for protected
speech.”). In addition, courts should be aware that the Fifth Circuit has
adopted more precise tests depending on the nature of the employee’s job.
For example, in the educational context, the Fifth Circuit “has held that
‘actions such as decisions concerning teaching assignment, pay increases,
administrative matters, and departmental procedures, while extremely
important to the person who has dedicated his or her life to teaching, do
not rise to the level of a constitutional deprivation.’ ” DePree v. Saunders,
588 F.3d 282, 287–88 (5th Cir. 2009) (citing Harrington v. Harris, 118 F.3d
359, 365 (5th Cir. 1997) (citation and internal punctuation omitted)).
8
Mt. Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 287.

102
CIVIL RIGHTS — 42 U.S.C. § 1983 10.6
need not prove [his/her] speech was the only reason
Defendant [name] made the decision.9

[If you find that Plaintiff [name] has proved each

element of [his/her] claim by a preponderance of the ev-
idence, then you must consider whether Defendant
[name] would have reached the same decision in the
absence of the protected speech.10 If you find Defendant
[name] has proved by a preponderance of the evidence
that [he/she/it] would have [specify action] whether or
not Plaintiff [name] engaged in protected speech, then
you must return a verdict for Defendant [name] and
against Plaintiff [name].]

If you find that Plaintiff [name] has proved each of

the three elements and that Defendant [name] failed to
prove that [he/she/it] would have reached the same de-
cision anyway, then Defendant [name] violated Plaintiff
[name]’s First Amendment right to free speech [and
your verdict will be for Plaintiff [name] on this claim]
or [and you must then consider whether Defendant
[name] is entitled to qualified immunity, which is a bar
to liability that I will explain later] (give first bracketed
language if there is no qualified immunity issue; give
second if there is such an issue along with the qualified
immunity instruction at Pattern Jury Instruction 10.3).
If Plaintiff [name] failed to make this showing, then
9
In contrast to prior precedent, those without the ability to make
final employment decisions may be found liable. Sims v. City of Madison-
ville, 894 F.3d 632, 641 (5th Cir. 2018). (“Johnson’s absolute bar on First
Amendment liability for those who are not final decisionmakers is not
binding.”); contra Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir. 2004)
(holding that non-final decisionmakers could not be found liable). To find
an individual with retaliatory motives, but who does not have final
decision-making authority, liable, there must be a “causal link” between
the individual’s action and the injury. Sims, 894 F.3d at 642; see Jett v.
Dallas, 798 F.2d 748, 758 (5th Cir. 1986).
10
Crawford-El v. Britton, 523 U.S. 574, 593 (1998) (citing Mt. Healthy
City Sch. Dist. Bd. of Educ., 429 U.S. at 287); Oscar Renda Contracting,
577 F.3d at 271 (noting that Defendant “can respond” to prima facie case
with proof that it would have reached same decision).

103
10.6 PATTERN JURY INSTRUCTIONS

your verdict must be for Defendant [name] on Plaintiff

[name]’s First Amendment claim.

[Insert qualified-immunity instruction (10.3) if

appropriate.]

[Insert supervisor/municipal liability instruction

(10.4) if appropriate.]

[Insert standard damages instructions and

emotional-distress instructions (10.13) if appropriate.]

104
CIVIL RIGHTS — 42 U.S.C. § 1983 10.7
10.7 Eighth Amendment (Excessive Force)—
Convicted Prisoner1

Plaintiff [name] claims that Defendant [name]

violated [his/her] Eighth Amendment right to be
protected from excessive and unnecessary force.

The Eighth Amendment to the Constitution of the

United States protects inmates like Plaintiff [name]
from cruel and unusual punishment.

To recover damages for this alleged constitutional

violation, Plaintiff [name] must prove by a preponder-
ance of the evidence that:
2
1. Defendant [name]3 used excessive force against
[him/her]; and
1
Earlier versions of Instruction 10.7 noted that it could be adapted
for pretrial detainees pursuing claims under the Fourteenth Amendment
because the Fifth Circuit had applied the same elements to claims under
both amendments. See, e.g., Clark v. Gonzalez, 129 F.3d 612 (5th Cir.
1997) (per curiam) (unpublished table decision). But in 2015, the United
States Supreme Court decided Kingsley v. Hendrickson, holding “that a
pretrial detainee must show only that the force purposely or knowingly
used against him was objectively unreasonable.” 135 S. Ct. 2466, 2473
(2015). As such, instructing the jury to consider whether the defendant
used force for malicious or sadistic reasons would run afoul of the objec-
tive test. See id. at 2475 (noting that language of Eighth and Fourteenth
Amendments “differs, and the nature of the claims often differs. And,
most importantly, pretrial detainees (unlike convicted prisoners) cannot be
punished at all, much less ‘maliciously and sadistically.’ ’’ (citation
omitted)). Accordingly, a new instruction for pretrial detainees has been
added as Instruction 10.10.
2
The “under color of law” element is usually conceded in the Eighth
Amendment context. It is omitted to avoid unnecessary confusion. If the
issue is disputed, it should be addressed as the first element. Further
instructions defining this element are found in Instruction 10.2.
3
If the plaintiff alleges bystander liability, an appropriate instruction
may be adapted from Kitchen v. Dallas County: “Bystander liability may
be established where an officer ‘(1) knows that a fellow officer is violating
an individual’s constitutional rights; (2) has a reasonable opportunity to
prevent the harm; and (3) chooses not to act.’ ’’ 759 F.3d 468, 480 (5th Cir.
2014) (quoting Whitley v. Hanna, 726 F.3d 631, 646–47 (5th Cir. 2013)),
abrogated on other grounds by Kingsley, 135 S. Ct. 2466.

105
10.7 PATTERN JURY INSTRUCTIONS

2. Plaintiff [name] suffered some harm as a result

of Defendant [name]’s use of force.4,5

Whether a use of force against a prison inmate is

excessive depends on whether the force was applied in
a good-faith effort to maintain or restore discipline, or
whether it was done maliciously or sadistically to cause
harm.6 If the force was used maliciously or sadistically
to cause harm to Plaintiff [name], then it was excessive.

To act “maliciously” means to intentionally do a

wrongful act without just cause or excuse, with an
intent to inflict injury, or under circumstances that
show an evil intent. To act “sadistically” means to inflict
pain on a person for one’s own pleasure.

In deciding whether the force used was excessive,

you must give prison officials wide-ranging deference in
the adoption and execution of policies and practices
that in their judgment are needed to preserve internal
order and discipline and to maintain internal security
4
The Fifth Circuit, like many other circuits, previously included a
significant-injury element. Later cases required “some harm,” which was
defined to mean more than de minimis injury. But in Wilkins v. Gaddy,
the Supreme Court reversed a circuit court decision applying the de mini-
mis injury rule. 559 U.S. 34, 37–38 (2010). The Court noted that while de
minimis force is not actionable, de minimis injury and de minimis force
are not coterminous. Id. Courts should be careful not to instruct the jury
using a de minimis injury standard.
5
If necessary, these instructions may be modified or limited in wrong-
ful death cases to reflect the state’s wrongful death statute. See Slade v.
City of Marshall, 814 F.3d 263, 264 (5th Cir. 2016) (“[A] plaintiff seeking
to recover on a wrongful death claim under § 1983 must prove both the al-
leged constitutional deprivation required by § 1983 and the causal link be-
tween the defendant’s unconstitutional acts or omissions and the death of
the victim, as required by the state’s wrongful death statute.” (quoting
Phillips ex rel. Phillips v. Monroe Cty., 311 F.3d 369, 374 (5th Cir. 2002))).
6
Wilkins, 559 U.S. at 37 (holding that the “core judicial inquiry” is
“whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” (quoting Hudson
v. McMillian, 503 U.S. 1, 7 (1992))).

106
CIVIL RIGHTS — 42 U.S.C. § 1983 10.7
in the prison.7 In making this determination, you may
consider the following nonexclusive factors: (1) the
extent of the injury suffered; (2) the need for the ap-
plication of force; (3) the relationship between the need
and the amount of force used; (4) the threat reasonably
perceived by the responsible officials; and (5) any ef-
forts made to temper the severity of a forceful response.8
The extent of injury an inmate suffers may suggest
whether the use of the force could reasonably have been
thought necessary in the particular situation.9

In considering the second element—harm—not

every malevolent, harmful, or injurious touch by a
prison guard gives rise to a claim under federal law.10
Only harm caused by excessive force as I have defined
it can violate the Constitution. Harm arising from a de
minimis use of force does not violate the Eighth Amend-
ment unless the use of force is repugnant to the con-
science of mankind.11 A use of force is de minimis if it is
so minor as to merit disregard. But an inmate like
Plaintiff [name] need not show significant injury to es-
tablish a constitutional violation.12

If Plaintiff [name] has proved both of these ele-

ments by a preponderance of the evidence, then you
will have found that Defendant [name] violated [his/
her] Eighth Amendment right to be protected from cruel
and unusual punishment [and your verdict will be for
7
Whitley v. Albers, 475 U.S. 312, 321–22 (1980) (quoting Bell v. Wolfish,
441 U.S. 520, 547 (1979)).
8
Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998) (citing Hudson
v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992)). These factors are nonex-
clusive, and others may be added when appropriate. See id. (citing Rankin
v. Klevenhagen, 5 F.3d 103, 107 n.6 (5th Cir. 1993)).
9
Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S. at 321).
10
Wilkins, 559 U.S. at 37.
11
Hudson, 503 U.S. at 10 (quoting Whitley, 475 U.S. at 327).
12
Bourne v. Gunnels, 921 F.3d 484, 492 (5th Cir. 2019) (“An inmate
need not establish a ‘significant injury’ to pursue an excessive force claim
because ‘[i]njury and force . . . are only imperfectly correlated, and it is
the latter that ultimately counts.’ ’’ (quoting Wilkins, 559 U.S. at 37–38)).

107
10.7 PATTERN JURY INSTRUCTIONS

Plaintiff [name] on this claim] or [and you must then

consider whether Defendant [name] is entitled to quali-
fied immunity, which is a bar to liability that I will
explain later] (give first bracketed language if there is
no qualified-immunity issue; give second if there is such
an issue along with the qualified-immunity instruction
at Pattern Jury Instruction 10.3). If Plaintiff [name]
failed to make this showing, then the force was not un-
constitutional, and your verdict will be for Defendant
[name] on this claim.

[Insert qualified-immunity instructions (10.3) if

appropriate.]

[Insert supervisor/municipal liability instructions

(10.4) if appropriate.]

[Insert standard damages instructions and

emotional-distress instructions (10.13) if necessary.]

108
CIVIL RIGHTS — 42 U.S.C. § 1983 10.8
10.8 Eighth Amendment (Inadequate Medical
Care — Convicted Prisoner)1

Plaintiff [name] asserts that Defendant [name]

violated [his/her] Eighth Amendment right to adequate
medical care.

The Eighth Amendment to the United States Con-

stitution prohibits cruel and unusual punishment. An
[officer/official] violates the Eighth Amendment if [his/
her] conduct demonstrates deliberate indifference to a
prisoner’s serious medical needs.2

To recover damages for this alleged constitutional

violation, Plaintiff [name] must prove by a preponder-
ance of the evidence that:
3
1. Plaintiff [name] was exposed to a substantial
risk of serious harm;

2. Defendant [name] displayed deliberate indiffer-

ence to that risk; and

3. Defendant [name]’s deliberate indifference

harmed Plaintiff [name].4,5
1
Other instructions apply to cases involving medical care of pretrial
detainees. See Hare v. City of Corinth, 74 F.3d 633, 644–50 (5th Cir. 1996)
(en banc); see also Instructions 10.11 and 10.12.
2
Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006).
3
The “under color of law” element is usually conceded in the Eighth
Amendment context. It is omitted to avoid unnecessary confusion. If the
issue is disputed, then the issue should be addressed as the first essential
element. Further instructions defining this element are found in Instruc-
tion 10.2.
4
McCarty v. Zapata Cty., 243 F. App’x 792, 794 (5th Cir. 2007) (per
curiam) (citing Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir. 2003))
(“[P]laintiff must establish resulting injuries.”); Victoria W. v. Larpenter,
369 F.3d 475, 483 (5th Cir. 2004) (explaining prima facie case).
5
If the claim is that health care was improperly delayed, then the
court should instruct the jury that “[a] delay in medical care violates the
Eighth Amendment only if it is due to deliberate indifference and results
in substantial harm,” Smith v. Milhauser, 444 F. App’x 812, 813 (5th Cir.

109
10.8 PATTERN JURY INSTRUCTIONS

To satisfy the first element, the illness or injury

must be so serious that the failure to treat it posed a
substantial risk of serious harm to Plaintiff [name]’s
health.7 This element asks whether, based on all of the
circumstances that were present, a reasonable person
would view a failure to treat the illness or injury or a
failure to provide adequate health care to be a denial of
the minimal civilized measure of life’s necessities.8 This
inquiry is what a reasonable person would have con-
cluded and does not consider Defendant [name]’s state
of mind.

The second element—deliberate indifference—

requires proof of egregious conduct.9 Only the unneces-
sary and wanton infliction of pain implicates the Eighth
Amendment.10 Plaintiff [name] must prove Defendant
[name] knew of and disregarded an excessive risk to
Plaintiff [name]’s health or safety. In other words,
Plaintiff [name] must prove Defendant [name]: (1) was
aware of facts from which the inference could be drawn

Oct. 14, 2011) (citing Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.
1993)), but also that “[t]he pain suffered during the delay itself . . . can
constitute a substantial harm,” Westfall v. Luna, 903 F.3d 534, 551 (5th
Cir. 2018) (per curiam) (citing Alderson v. Concordia Par. Corr. Facility,
848 F.3d 415, 422 (5th Cir. 2017) (per curiam)). If necessary, these instruc-
tions may be modified or limited in wrongful death cases to reflect the
state’s wrongful death statute. See Slade v. City of Marshall, 814 F.3d
263, 264 (5th Cir. 2016) (“[A] plaintiff seeking to recover on a wrongful
death claim under § 1983 must prove both the alleged constitutional dep-
rivation required by § 1983 and the causal link between the defendant’s
unconstitutional acts and omissions and the death of the victim, as
required by the state’s wrongful death statute.” (quoting Phillips ex rel.
Phillips v. Monroe Cty., 311 F.3d 369, 374 (5th Cir. 2002))).
7
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Helling v.
McKinney, 509 U.S. 25, 35 (1993)).
8
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Hudson v. McMil-
lian, 503 U.S. 1, 5 (1992); Wilson, 501 U.S. at 298; Rhodes v. Chapman,
452 U.S. 337, 347 (1981)) (holding that “the deprivation alleged must be,
objectively, ‘sufficiently serious’; a prison official’s act or omission must
result in the denial of ‘the minimal civilized measure of life’s necessities.’ ’’).
9
Cooper v. Johnson, 353 F. App’x 965, 968 (5th Cir. 2009) (per curiam)
(“A defendant’s conduct must rise ‘to the level of egregious conduct.’ ”
(quoting Gobert v. Caldwell, 463 F.3d 339, 351 (5th Cir. 2006))).
10
Farmer, 511 U.S. at 834 (citing Wilson, 501 U.S. at 297).

110
CIVIL RIGHTS — 42 U.S.C. § 1983 10.8
that a substantial risk of serious harm existed; and (2)
actually drew that inference.11,12 An inmate’s mere dis-
agreement with the type or amount of medical treat-
ment [he/she] receives is not sufficient to meet this
test.13,14

If Plaintiff [name] has proved each of these three

elements by a preponderance of the evidence, then you
will have found that Defendant [name] violated [his/
her] Eighth Amendment right to be protected from cruel
and unusual punishment [and your verdict will be for
Plaintiff [name] on this claim] or [and you must then
consider whether Defendant [name] is entitled to quali-
fied immunity, which is a bar to liability that I will
explain later] (give first bracketed language if there is
no qualified-immunity issue; give second if there is such
an issue along with the qualified-immunity instruction
at Pattern Jury Instruction 10.3). If Plaintiff [name]
11
Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) (quoting
Farmer, 511 U.S. at 837).
12
In some cases, the following instructions may be appropriate. “[A]
prison official’s knowledge of a substantial risk of harm may be inferred if
the risk was obvious.” Easter, 467 F.3d at 463 (citing Farmer, 511 U.S. at
842–43). However, corroborating evidence is required before a jury may
infer that an inmate’s use of prison grievance procedures put a prison of-
ficial on notice that a substantial risk of serious harm existed. Ball v.
LeBlanc, 792 F.3d 584, 595 (5th Cir. 2015) (“[A] prison administrator who
has received an administrative remedy request is not necessarily made
aware, without factual corroboration, that there is a substantial risk of
serious harm.”).
13
Gibson v. Collier, 920 F.3d 212, 216 (5th Cir. 2019) (‘‘ ‘[M]ere dis-
agreement with one’s medical treatment is insufficient’ to state a claim
under the Eighth Amendment.” (quoting Delaughter v. Woodall, 909 F.3d
130, 136 (5th Cir. 2018))).
14
Some cases observe that “[t]o make a showing of deliberate indiffer-
ence, the inmate must submit evidence that prison officials refused to
treat him, ignored [his/her] complaints, intentionally treated [him/her]
incorrectly, or engaged in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs.” McCarty, 243 F. App’x at
794 (citing Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756
(5th Cir. 2001)); see also Delaughter, 909 F.3d at 138 (distinguishing the
failure to provide “a prescribed course of treatment” from an inmate’s
“subjective opinion of the sufficiency of his medical treatment that is ei-
ther contradicted or unsupported by medical professionals”).

111
10.8 PATTERN JURY INSTRUCTIONS

failed to make this showing, then your verdict must be

for Defendant [name] on this claim.

[Insert qualified-immunity instruction (10.3) if

appropriate.]

[Insert supervisor/municipal liability instruction

(10.4) if appropriate.15]

[Insert standard damages instructions and

emotional-distress damages instructions (10.13) if
appropriate.]

15
In the context of physician supervision of nurses, the Fifth Circuit
has held that a plaintiff must prove “that the doctors and wardens failed
to supervise or train the subordinate officials” and “that the doctors knew
the nurses were disregarding their orders, and the doctors neglected to
correct this behavior knowing it posed an actual serious risk to [the
plaintiff’s] health.” Brauner v. Coody, 793 F.3d 493, 501 (5th Cir. 2015).

112
CIVIL RIGHTS — 42 U.S.C. § 1983 10.9
10.9 Eighth Amendment (Conditions of
Confinement — Convicted Prisoner)1,2

Plaintiff [name] claims that the conditions of [his/

her] confinement in [specify jail, prison, or other facil-
ity] violated [his/her] Eighth Amendment constitutional
right to be protected from cruel and unusual
punishment. More precisely, Plaintiff [name] claims
that Defendant [name] violated [his/her] Eighth Amend-
ment rights by: [specify alleged unconstitutional condi-
tions of confinement].

To recover damages for the alleged constitutional

violation[s], Plaintiff [name] must prove by a preponder-
ance of the evidence that:
3
1. the prison conditions resulted in an extreme
deprivation of the minimal measure of life’s
necessities; and4
1
The Eighth Amendment applies to claims made by convicted
inmates; the Fourteenth Amendment applies to claims made by pretrial
detainees. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015); see
Instructions 10.11 and 10.12.
2
Other factual scenarios may require modified instructions. See, e.g.,
DeMarco v. Davis, 914 F.3d 383, 387–88 (5th Cir. 2019) (access to courts);
Brown v. Taylor, 911 F.3d 235, 245–46 (5th Cir. 2018) (per curiam) (retali-
ation); Butts v. Martin, 877 F.3d 571, 558–89 (5th Cir. 2017) (retaliation);
Lewis v. Sec’y of Pub. Safety & Corrs., 870 F.3d 365, 368–69 (5th Cir.
2017) (Fourth Amendment search); Davis v. Davis, 826 F.3d 258, 264–65
(5th Cir. 2016) (free exercise under First Amendment and Religious Land
Use and Institutionalized Persons Act); Wilkerson v. Goodwin, 774 F.3d
845, 851–59 (5th Cir. 2014) (procedural due process); Stauffer v. Gearhart,
741 F.3d 574, 584–86 (5th Cir. 2014) (per curiam) (free exercise under
First Amendment).
3
The “under color of law” element is usually conceded in the Eighth
Amendment context. It is omitted to avoid unnecessary confusion. If the
issue is disputed, it should be addressed as the first element. Further
instructions defining this element are found in Instruction 10.2.
4
Hudson v. McMillian, 503 U.S. 1, 9 (1992) (“[E]xtreme deprivations
are required to make out a conditions-of-confinement claim.”).

113
10.9 PATTERN JURY INSTRUCTIONS

2. Defendant [name] acted with deliberate

indifference.5

As to the first element, it is not enough that the

conditions were restrictive or even harsh. This is part
of the penalty that criminal offenders pay. You may
find that the conditions of Plaintiff [name]’s confine-
ment amounted to an extreme deprivation—and were
therefore cruel and unusual punishment—only if they
posed an unreasonable risk of serious damage to
Plaintiff [name]’s health or safety. In deciding whether
Plaintiff [name] has proved an extreme deprivation,
you should ask whether society considers the risk that
the prisoner complains of to be so grave that it violates
contemporary standards of decency to expose anyone
unwillingly to such a risk.6

Deliberate indifference in this context means that

the official knows of and disregards an excessive risk to
inmate health or safety. The official must: (1) be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists; and (2) must
draw that inference.7 Deliberate indifference may be
inferred if the risk of harm is obvious.8,9
5
Wilson v. Seiter, 501 U.S. 294, 304 (1991).
6
Helling v. McKinney, 509 U.S. 25, 35–36 (1993). This represents the
objective component of the test. See Hudson, 503 U.S. at 8–9.
7
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Corroborating evi-
dence is required before a jury may infer that an inmate’s use of prison
grievance procedures puts a prison official on notice that a substantial
risk of serious harm existed. Ball v. LeBlanc, 792 F.3d 584, 595 (5th Cir.
2015) (“[A] prison administrator who has received an administrative rem-
edy request is not necessarily made aware, without factual corroboration,
that there is a substantial risk of serious harm.”).
8
Hope v. Pelzer, 536 U.S. 730, 737–38 (2002) (citing Farmer, 511 U.S.
at 842) (“We may infer the existence of this subjective state of mind from
the fact that the risk of harm is obvious.”).
9
Although the objective and subjective tests apply in all Eighth
Amendment contexts, the wording may be altered depending on the
specific claim. For example, in a failure-to-protect context, the Fifth Circuit
has noted:

114
CIVIL RIGHTS — 42 U.S.C. § 1983 10.9
If Plaintiff [name] has proved both of these two ele-
ments by a preponderance of the evidence, then you
will have found that Defendant [name] violated [his/
her] Eighth Amendment right to be protected from cruel
and unusual punishment [and your verdict will be for
Plaintiff [name] on this claim] or [and you must then
consider whether Defendant [name] is entitled to quali-
fied immunity, which is a bar to liability that I will
explain later] (give first bracketed language if there is
no qualified-immunity issue; give second if there is such
an issue along with the qualified immunity-instruction
at Pattern Jury Instruction 10.3). If [he/she] failed to
make this showing, then your verdict must be for
Defendant [name] on this claim.

[Insert qualified-immunity instruction (10.3) if

appropriate.]

[Insert supervisor/municipal liability instruction

(10.4) if appropriate.]

[Insert standard damages instructions and

emotional-distress instructions (10.13) if appropriate.]

To prevail on a section 1983 failure to protect claim, prisoner must

demonstrate that “he [or she] was incarcerated under conditions
posing a substantial risk of serious harm and that prison officials
were deliberately indifferent to his [or her] need for protection.”
Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999) (quoting Newton v.
Black, 133 F.3d 301, 308 (5th Cir. 1998)); see also Arenas v. Calhoun, 922
F.3d 616, 621 (5th Cir. 2019) (“There is ‘no rule of constitutional law [that]
requires unarmed officials to endanger their own safety in order to protect
a prison inmate.’ ’’ (quoting Longoria v. Texas, 473 F.3d 586, 594 (5th Cir.
2006))); Williams v. Hampton, 797 F.3d 276, 288 (5th Cir. 2015) (en banc)
(“[I]f an Eighth Amendment plaintiff presents evidence showing that a
substantial risk of inmate attacks was longstanding, pervasive, well-
documented, or expressly noted by prison officials in the past, and the cir-
cumstances suggest that the defendant-official being sued had been ex-
posed to information concerning the risk and thus must have known about
it, then such evidence could be sufficient to permit a trier of fact to find
that the defendant-official had actual knowledge of the risk.” (internal
quotation marks omitted) (quoting Farmer, 511 U.S. at 842)).

115
10.10 PATTERN JURY INSTRUCTIONS

10.10 Fourteenth Amendment (Excessive Force—

Pretrial Detainee)1

Plaintiff [name] claims that Defendant [name]

violated [his/her] Fourteenth Amendment right to be
protected from excessive and unnecessary force.

The Fourteenth Amendment to the Constitution of

the United States protects pretrial detainees like
Plaintiff [name] from punishment, including excessive
and unnecessary force.

To recover damages for this alleged constitutional

violation, Plaintiff [name] must prove by a preponder-
ance of the evidence that:

1. 2Defendant [name]3 purposely or knowingly

used force against him that was objectively unrea-
sonable;4 and

2. Plaintiff [name] suffered some harm as a

result of Defendant [name]’s use of force.5
1
Earlier versions of the jury instructions did not distinguish between
excessive force claims brought by prisoners and those brought by pretrial
detainees. But in 2015, the United States Supreme Court decided Kingsley
v. Hendrickson, holding “that a pretrial detainee must show only that the
force purposely or knowingly used against him was objectively
unreasonable.” 135 S. Ct. 2466, 2473 (2015). Accordingly, this instruction
has been added to reflect the change in the law.
2
If the “under color of law” element has not been conceded, it should
be addressed as the first element. Further instructions defining this ele-
ment are found in Instruction 10.2.
3
If the plaintiff alleges bystander liability, an appropriate instruction
may be adapted from Kitchen v. Dallas County: “Bystander liability may
be established where an officer ‘(1) knows that a fellow officer is violating
an individual’s constitutional rights; (2) has a reasonable opportunity to
prevent the harm; and (3) chooses not to act.’ ’’ 759 F.3d 468, 480 (5th Cir.
2014) (quoting Whitley v. Hanna, 726 F.3d 631, 646–47 (5th Cir. 2013)),
abrogated on other grounds by Kingsley, 135 S. Ct. 2466.
4
Kingsley, 135 S. Ct. at 2473.
5
If necessary, these instructions may be modified or limited in wrong-
ful death cases to reflect the state’s wrongful death statute. See Slade v.
City of Marshall, 814 F.3d 263, 264 (5th Cir. 2016) (“[A] plaintiff seeking

116
CIVIL RIGHTS — 42 U.S.C. § 1983 10.10
To satisfy the first element, Plaintiff [name] must
show Defendant [name] purposely or knowingly applied
force. That is, Defendant must have intended to [de-
scribe the disputed force]. Mere acts of negligence or ac-
cidental use of force will not violate the Constitution.6
However, Plaintiff [name] need not show that Defen-
dant [name] intended to cause harm.7

To determine whether the force was objectively un-

reasonable, you must ask whether a reasonable officer
possessing Defendant [name]’s knowledge of the cir-
cumstances at the scene would have viewed the force as
unreasonable or excessive. This must not be viewed
with the 20/20 vision of hindsight, but you are not to be
concerned with Defendant [name]’s actual state of mind.

You must also account for the legitimate interests

that stem from the need to manage a facility in which
individuals are detained, appropriately deferring to
policies and practices that in the judgment of jail of-
ficials are needed to preserve internal order and disci-
pline and to maintain institutional security.8

When deciding whether the force was objectively

unreasonable or excessive, you may consider the follow-
ing nonexclusive factors: (1) the relationship between
the need for the use of force and the amount of force
used; (2) the extent of the plaintiff’s injury; (3) any ef-
fort made by the officer to temper or to limit the amount
of force; (4) the severity of the security problem at is-

to recover on a wrongful death claim under § 1983 must prove both the al-
leged constitutional deprivation required by § 1983 and the causal link be-
tween the defendant’s unconstitutional acts and omissions and the death
of the victim, as required by the state’s wrongful death statute.” (quoting
Phillips ex rel. Phillips v. Monroe Cty., 311 F.3d 369, 374 (5th Cir. 2002))).
6
Kingsley, 135 S. Ct. at 2472.
7
See id. at 2475.
8
Id. at 2473 (quoting Bell v. Wolfish, 441 U.S. 520, 540 (1979)).

117
10.10 PATTERN JURY INSTRUCTIONS

sue; (5) the threat reasonably perceived by the officer;

and (6) whether the plaintiff was actively resisting.9

If Plaintiff [name] has proved both of these ele-

ments by a preponderance of the evidence, then you
will have found that Defendant [name] violated [his/
her] Fourteenth Amendment rights [and your verdict
will be for Plaintiff [name] on this claim] or [and you
must then consider whether Defendant [name] is
entitled to qualified immunity, which is a bar to liability
that I will explain later] (give first bracketed language
if there is no qualified immunity issue; give second if
there is such an issue along with the qualified-immunity
instruction at Pattern Jury Instruction 10.3). If Plaintiff
[name] failed to make this showing, then the force was
not unconstitutional, and your verdict will be for
Defendant [name] on this claim.

[Insert qualified immunity instructions (10.3) if

appropriate.]

[Insert supervisor/municipal liability instructions

(10.4) if appropriate.]

[Insert standard damages instructions and

emotional-distress instructions (10.13) if necessary.]

9
Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)); see Cowart
v. Erwin, 837 F.3d 444, 454 (5th Cir. 2016) (“[C]ourts have frequently
found constitutional violations in cases where a restrained or subdued
person is subjected to the use of force.” (quoting Kitchen, 759 F.3d at 477)).

118
CIVIL RIGHTS — 42 U.S.C. § 1983 10.11
10.11 Fourteenth Amendment (Inadequate
Medical Care/Conditions of Confinement
— Pretrial Detainee)1,2,3

Plaintiff [name] claims that Defendant [name]

violated [his/her] Fourteenth Amendment right to medi-
1
When deciding whether to give Instruction 10.11 or Instruction 10.
12, the district court must determine “whether the alleged unconstitu-
tional conduct is a ‘condition of confinement’ or [an] ‘episodic act or
omission.’ When the alleged constitutional violation is a particular act or
omission by an individual that points to a derivative policy or custom of
the municipality, we apply the deliberate indifference standard.” Gibbs v.
Grimmette, 254 F.3d 545, 549 n.2 (5th Cir. 2001) (internal citation omit-
ted) (emphasis added). On the other hand, if the allegation is that a condi-
tion of confinement violates the Constitution, the proper standard is
whether the condition is “reasonably related to a legitimate goal.” Garza
v. City of Donna, 922 F.3d 626, 632 (5th Cir. 2019) (quoting Bell v. Wolfish,
441 U.S. 520, 539 (1979)). The Fifth Circuit recently discussed the
prerequisites for the use of a conditions-of-confinement theory of liability:
“a condition may take the form of ‘a rule,’ a ‘restriction,’ ‘an identifiable
extended condition or practice,’ or ‘acts or omissions’ by a jail official that
are ‘sufficiently extended or pervasive.’ ’’ Id. (quoting Estate of Henson v.
Wichita County, 795 F.3d 456, 468 (5th Cir. 2015)). The Fifth Circuit has
also described scenarios that do not establish conditions-of-confinement
claims:
[I]solated examples of illness, injury, or even death, standing alone,
cannot prove that conditions of confinement are constitutionally
inadequate. Nor can the incidence of diseases or infections, standing
alone, imply unconstitutional confinement conditions, since any
densely populated residence may be subject to outbreaks. Allega-
tions of insufficient funding are similarly unavailing.
Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009). To receive a
jury instruction using the reasonable-relationship standard, a plaintiff
must show “a pervasive pattern of serious deficiencies in providing for [de-
tainees’] basic human needs.” Id. In some cases, the plaintiff may proceed
on both theories, provided the evidence is sufficient to reach a jury on
both. Shepherd, 591 F.3d at 453 n.1 (“Further, the district judge is no
more required to classify a § 1983 lawsuit than any other case in which
multiple theories are pled in the alternative. In the present case, . . . a
fact issue existed only on the conditions of confinement claim.”).
2
The same distinction between episodic acts and conditions of
confinement applies to failure-to-protect cases. Hare v. City of Corinth, 74
F.3d 633, 643 (5th Cir. 1996) (en banc) (“[M]edical care and failure-to-
protect cases should be treated the same for purposes of measuring
constitutional liability.”).
3
If the plaintiff has challenged the fact of detention rather than a
specific condition of confinement, Fourth Amendment standards apply if
the underlying arrest was not supported by probable cause, Manuel v.

119
10.11 PATTERN JURY INSTRUCTIONS

cal care while [he/she] was detained at [specify jail,

prison, or other facility].

A pretrial detainee who has not been convicted of a

crime has a right under the Fourteenth Amendment to
the United States Constitution to be protected from
impermissible punishment like the denial of or delay in
providing certain medical care.4

To recover damages for this alleged constitutional

violation, Plaintiff [name] must prove by a preponder-
ance of the evidence:
5
1. the existence of an identifiable intended condi-
tion, policy, or practice of inadequate medical
care; and

2. that the condition, policy, or practice resulted

in a serious deprivation of Plaintiff [name]’s
basic human needs and was not reasonably re-
lated to a legitimate governmental objective.6

As to the first element, a condition usually results

from an explicit policy or restriction. But a pattern may
demonstrate an unstated or de facto policy. To show
such a policy, Plaintiff [name] must show more than
isolated instances of inadequate or even negligent medi-
cal care. It is likewise not enough to show that Plaintiff
[name] suffered from episodic acts or omissions of jail

City of Joliet, 137 S. Ct. 911, 917–20 (2017), while Fourteenth Amendment
procedural due process standards apply if the underlying arrest was law-
ful, Jauch v. Choctaw County, 874 F.3d 425, 429–35 (5th Cir. 2017).
4
If the condition or policy is unrelated to medical care, the court
should replace the reference to a denial or delay in medical care with an
instruction that a detainee must be protected from general conditions,
practices, rules or restrictions of pretrial confinement that impermissibly
punish him or her. Garza v. City of Donna, 922 F.3d at 634 (quoting Hare,
74 F.3d at 644).
5
If the “under color of law” element has not been conceded, it should
be addressed as the first element. Further instructions defining this ele-
ment are found in Instruction 10.2.
6
Shepherd, 591 F.3d at 455 n.3 (approving jury charge).

120
CIVIL RIGHTS — 42 U.S.C. § 1983 10.11
officials. Instead, Plaintiff [name] must show that the
disputed acts are indicative of a system-wide problem
that has been extended or pervasive. In other words, if
Plaintiff [name] relies on an act or omission of a partic-
ular jail [officer/official] to prove that Defendant [name]
intended the condition or practice, the act or omission
must be the result of an established policy, or it must
be part of, or typical of, an extended or pervasive
practice.7

To establish the second element and prove that a

condition of confinement constituted impermissible
punishment, Plaintiff [name] must prove a pervasive
pattern of serious deficiencies in providing for [his/her]
basic needs that was not reasonably related to a legiti-
mate governmental objective. Not every denial or delay
of medical care imposed during pretrial detention
amounts to “punishment” in the constitutional sense.
The effective management of a detention facility is a
valid objective that may justify imposing conditions and
restrictions. Pretrial detainees are not entitled to the
best medical care available or to the level of medical
care that may be available to persons who are not
detained. But a facility must provide for a detainee’s
basic human needs.9 To satisfy this element, Plaintiff
[name] must prove that the level of medical care
provided generally at the [jail, prison, or other facility]
was so inadequate that it resulted in a serious depriva-
tion of [his/her] basic human needs, and that the level
of care provided was not reasonably related to a legiti-
mate governmental objective.10

If Plaintiff [name] has proved both of these ele-

7
Similar language was approved in Shepherd v. Dallas County, but
the committee has streamlined the language. Id.; see Duvall v. Dallas Cty,
631 F.3d 203, 207–08 (5th Cir. 2011) (per curiam).
9
Shepherd, 591 F.3d at 453–54.
10
Shepherd, 591 F.3d at 455; see also id. at 452 (citing Bell v. Wolfish,
441 U.S. 520, 539 (1979)).

121
10.11 PATTERN JURY INSTRUCTIONS

ments by a preponderance of the evidence, then Defen-

dant [name] violated Plaintiff [name]’s Fourteenth
Amendment rights [and your verdict must be for
Plaintiff [name] on this claim] or [and you must then
consider whether Defendant [name] is entitled to quali-
fied immunity, which is a bar to liability that I will
explain later] (give first bracketed language if there is
no qualified-immunity issue; give second if there is such
an issue along with the qualified-immunity instruction
at Pattern Jury Instruction 10.3). If [he/she] failed to
make this showing, then your verdict must be for
Defendant [name] on this claim.

[Insert qualified-immunity instruction (10.3) if

appropriate.]

[Insert supervisor/municipal liability instruction

(10.4) if appropriate.]

[Insert standard damages instructions and

emotional-distress damages instructions (10.13) if
appropriate.]

122
CIVIL RIGHTS — 42 U.S.C. § 1983 10.12
10.12 Fourteenth Amendment (Inadequate
Medical Care/Episodic Acts—Pretrial
Detainee)1,2,3

Plaintiff [name] claims that Defendant [name]

violated [his/her] Fourteenth Amendment right to medi-
cal care while [he/she] was detained at [specify jail,
prison, or other facility].
1
When deciding whether to give Instruction 10.11 or Instruction 10.
12, the district court must determine “whether the alleged unconstitu-
tional conduct is a ‘condition of confinement’ or [an] ‘episodic act or
omission.’ When the alleged constitutional violation is a particular act or
omission by an individual that points to a derivative policy or custom of
the municipality, we apply the deliberate indifference standard.” Gibbs v.
Grimmette, 254 F.3d 545, 549 n.2 (5th Cir. 2001) (internal citation omit-
ted) (emphasis added). On the other hand, if the allegation is that a condi-
tion of confinement violates the Constitution, the proper standard is
whether the condition is “reasonably related to a legitimate goal.” Garza
v. City of Donna, 922 F.3d 626, 632 (5th Cir. 2019) (quoting Bell v. Wolfish,
441 U.S. 520, 539 (1979)). The Fifth Circuit recently discussed the
prerequisites for the use of a conditions-of-confinement theory of liability:
“a condition may take the form of ‘a rule,’ a ‘restriction,’ ‘an identifiable
extended condition or practice,’ or ‘acts or omissions’ by a jail official that
are ‘sufficiently extended or pervasive.’ ’’ Id. (quoting Estate of Henson v.
Wichita Cty., 795 F.3d 456, 468 (5th Cir. 2015)). The Fifth Circuit has also
described scenarios that do not establish conditions-of-confinement claims:
[I]solated examples of illness, injury, or even death, standing alone,
cannot prove that conditions of confinement are constitutionally
inadequate. Nor can the incidence of diseases or infections, standing
alone, imply unconstitutional confinement conditions, since any
densely populated residence may be subject to outbreaks. Allega-
tions of insufficient funding are similarly unavailing.
Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009). To receive a
jury instruction using the reasonable-relationship standard, a plaintiff
must show “a pervasive pattern of serious deficiencies in providing for [a
detainee’s] basic human needs.” Id. In some cases, the plaintiff may
proceed on both theories, provided the evidence is sufficient to reach a
jury on both. See id. at 452 n.1 (“Further, the district judge is no more
required to classify a § 1983 lawsuit than any other case in which multiple
theories are pled in the alternative. In the present case, . . . a fact issue
existed only on the conditions of confinement claim.”).
2
A different standard applies to excessive-force claims. See Instruc-
tion 10.10.
3
The same distinction between episodic acts and conditions of
confinement applies to failure-to-protect cases. Hare v. City of Corinth, 74
F.3d 633, 643 (5th Cir. 1996) (en banc) (“[M]edical care and failure-to-
protect cases should be treated the same for purposes of measuring
constitutional liability.”).

123
10.12 PATTERN JURY INSTRUCTIONS

A pretrial detainee who has not been convicted of a

crime has a right under the Fourteenth Amendment to
the United States Constitution to be protected from
impermissible punishment like denials of, or delays in,
providing certain medical care.

To recover damages for this alleged constitutional

violation, Plaintiff [name] must prove by a preponder-
ance of the evidence that:
4
1. Plaintiff [name] was exposed to a substantial
risk of serious harm;

2. Defendant [name] displayed deliberate indiffer-

ence to that risk; and

3. the deliberate indifference harmed Plaintiff

[name].5,6

The first element asks whether a reasonable person

would view Plaintiff [name]’s illness or injury as suf-
4
If the “under color of law” element has not been conceded, it should
be addressed as the first element. Further instructions defining this ele-
ment are found in Instruction 10.2.
5
McCarty v. Zapata Cty., 243 F. App’x 792, 794 (5th Cir. 2007) (per
curiam) (citing Mace v. City of Palestine, 333 F.3d 621, 625 (5th Cir. 2003)
(“[P]laintiff must establish resulting injuries.”); Victoria W. v. Larpenter,
369 F.3d 475, 483 (5th Cir. 2004) (explaining prima facie case).
6
If the claim is that health care was improperly delayed, then the
court should instruct the jury that “[a] delay in medical care violates the
[Fourteenth] Amendment only if it is due to deliberate indifference and
results in substantial harm,” Smith v. Milhauser, 444 F. App’x 812, 813
(5th Cir. 2011) (per curiam) (emphasis added) (citing Mendoza v. Lynaugh,
989 F.2d 191, 195 (5th Cir. 1993)), but also that “[t]he pain suffered during
the delay itself . . . can constitute a substantial harm,” Westfall v. Luna,
903 F.3d 534, 551 (5th Cir. 2018) (per curiam) (citing Alderson v. Concor-
dia Par. Corr. Facility, 848 F.3d 415, 422 (5th Cir. 2017) (per curiam)). If
necessary, these instructions may be modified or limited in wrongful death
cases to reflect the state’s wrongful death statute. See Slade v. City of
Marshall, 814 F.3d 263, 264 (5th Cir. 2016) (“[A] plaintiff seeking to re-
cover on a wrongful death claim under § 1983 must prove both the alleged
constitutional deprivation required by § 1983 and the causal link between
the defendant’s unconstitutional acts and omissions and the death of the
victim, as required by the state’s wrongful death statute.” (quoting Phillips
ex rel. Phillips v. Monroe Cty., 311 F.3d 369, 374 (5th Cir. 2002))).

124
CIVIL RIGHTS — 42 U.S.C. § 1983 10.12
ficiently serious based on all of the circumstances that
existed.7 This inquiry asks what a reasonable person
would conclude and does not consider Defendant
[name]’s state of mind.

The second element—deliberate indifference—

requires proof of egregious conduct.8 Plaintiff [name]
must prove Defendant [name] knew of and disregarded
an excessive risk to Plaintiff [name]’s health or safety.
Plaintiff [name] must prove that Defendant [name]: (1)
was aware of facts from which the inference could be
drawn that a substantial risk of serious harm existed;
and (2) actually drew that inference.9 An inmate’s mere
disagreement with the type, amount, or timing of medi-
cal treatment [he/she] receives is not enough to meet
this test.10,11,12
7
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Hudson v. McMil-
lian, 503 U.S. 1, 8 (1992); Wilson v. Seiter, 501 U.S. 294, 298 (1991);
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) (holding that “the depriva-
tion alleged must be, objectively, ‘sufficiently serious’; a prison official’s act
or omission must result in the denial of ‘the minimal civilized measure of
life’s necessities.’ ”
8
Cooper v. Johnson, 353 F. App’x 965, 968 (5th Cir. 2009) (“A
defendant’s conduct must rise ‘to the level of egregious conduct.’ ” (quoting
Gobert v. Caldwell, 463 F.3d 339, 351 (5th Cir. 2006))).
9
Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) (quoting
Farmer, 511 U.S. at 837). A court must not instruct a jury that a defendant
must have had a “subjective intention that harm occur,” as the Fifth
Circuit has found that standard to be contrary to Supreme Court and
Fifth Circuit precedent. See Garza, 922 F.3d at 634–36.
10
Gibson v. Collier, 920 F.3d 212, 216 (5th Cir. 2019) (‘‘ ‘[M]ere dis-
agreement with one’s medical treatment is insufficient’ to state a claim
under the Eighth Amendment.” (quoting Delaughter v. Woodall, 909 F.3d
130, 136 (5th Cir. 2018))).
11
Some cases observe that “[t]o make a showing of deliberate indiffer-
ence, the inmate must submit evidence that prison officials refused to
treat him, ignored his complaints, intentionally treated him [or her] incor-
rectly, or engaged in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs.” McCarty, 243 F. App’x at
794 (citing Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756
(5th Cir. 2001)); see also Delaughter, 909 F.3d at 138 (distinguishing the
failure to provide “a prescribed course of treatment” from an inmate’s
“subjective opinion of the sufficiency of his medical treatment that is ei-
ther contradicted or unsupported by medical professionals”).

125
10.12 PATTERN JURY INSTRUCTIONS

If Plaintiff [name] has proved each of these three

elements listed above by a preponderance of the evi-
dence, then Defendant [name] violated Plaintiff [name]’s
Fourteenth Amendment rights [and your verdict will be
for Plaintiff [name] on this claim] or [and you must
then consider whether Defendant [name] is entitled to
qualified immunity, which is a bar to liability that I
will explain later] (give first bracketed language if there
is no qualified-immunity issue; give second if there is
such an issue along with the qualified-immunity instruc-
tion at Pattern Jury Instruction 10.3). If [he/she] failed
to make this showing, then your verdict must be for
Defendant [name] on this claim.

[Insert qualified-immunity instruction (10.3) if

appropriate.]

[Insert supervisor/municipal liability instruction

(10.4) if appropriate.]

[Insert standard damages instructions and

emotional-distress damages instructions (10.13) if
appropriate.]

12
In the failure to protect context, a court should instruct the jury
that “[a]ctions and decisions by officials that are merely inept, erroneous,
ineffective, or negligent do not amount to deliberate indifference.” Alder-
son, 848 F.3d at 420 (quoting Alton v. Tex. A & M Univ., 168 F.3d 196, 201
(5th Cir. 1999)).

126
CIVIL RIGHTS — 42 U.S.C. § 1983 10.13
10.13 Emotional Distress Damages

To recover compensatory damages for mental and

emotional distress,1 Plaintiff [name] must prove that
[he/she] has suffered a specific discernable injury with
credible evidence. Hurt feelings, anger, and frustration
are part of life and are not the types of harm that could
support a mental-anguish award. Evidence of mental
anguish need not be corroborated by doctors, psycholo-
gists, or other witnesses, but Plaintiff [name] must sup-
port [his/her] claims with competent evidence of the
nature, extent, and duration of the harm. Damages for
mental or emotional distress must be based on the evi-
dence at trial. They may not be based on speculation or
sympathy.2

1
Under the Prison Litigation Reform Act, a plaintiff who was
incarcerated or detained at the time suit was filed cannot recover dam-
ages for mental or emotional distress unless he or she also shows “physi-
cal injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e); see
Janes v. Hernandez, 215 F.3d 541, 543 (5th Cir. 2000) (holding that the
limitations of the PLRA apply only to suits filed while the plaintiff is a
prisoner). This instruction, therefore, is only proper as to such a plaintiff
if the evidence has shown physical injury or a sexual act.
2
See Brady v. Fort Bend Cty., 145 F.3d 691, 718 (5th Cir. 1998) (quot-
ing Carey v. Piphus, 435 U.S. 247, 264 n.20 (1978)); Patterson v. P.H.P.
Healthcare Corp., 90 F.3d 927, 938, 940 (5th Cir. 1996)); see also Vadie v.
Miss. State Univ., 218 F.3d 365, 377–78 (5th Cir. 2000).

127
 11

EMPLOYMENT CLAIMS 1

OVERVIEW OF EMPLOYMENT DISCRIMINATION,

HARASSMENT, AND RETALIATION CASES: PRETEXT,
MIXED-MOTIVE, AND BUT-FOR STANDARDS

In many employment cases, the type of challenge to the

employment action is critical to instructing the jury on liability,
particularly on causation. Recent Supreme Court decisions have
clarified the causation standards for certain Title VII claims and
for ADEA claims. The causation standard for other employment
claims has received less recent attention and is currently less
clear. The jury instructions must follow the most recent case law
for the particular statute, facts, and issues presented, and must be
tailored to fit each particular case.

The key recent Supreme Court cases2 that have clarified the
causation standard for certain Title VII claims and for ADEA
claims are:

1. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003): The

causation standard in Title VII discrimination cases under 42
U.S.C. § 2000e-2(m) is whether the plaintiff’s protected status
was a “motivating factor” in the challenged employment
decision.

2. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009):

Motivating-factor instructions are not proper in ADEA cases.
The causation standard in such cases is whether the plaintiff’s

1
The 2009 Fifth Circuit Labor and Employment Law Pattern Jury
Charge was developed by the Fifth Circuit Labor and Employment Law
Pattern Jury Charge Advisory Committee, under the guidance of the
Honorable Martin L.C. Feldman, United States District Judge for the
Eastern District of Louisiana and the Chair of the Committee on Pattern
Jury Instructions, Fifth Circuit District Judges Association. This updated
version owes a debt to the Committee’s hard work.
2
This chapter does not use the “id.” short-citation form because many
judges and lawyers cut and paste portions of the instructions into differ-
ent documents, which would make an unlinked “id.” citation confusing.
This chapter instead uses a short form with the case name and citation.

128
 EMPLOYMENT CLAIMS

age was a “but-for” cause of the challenged employment

decision.

3. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338

(2013): In Title VII retaliation cases, the plaintiff’s protected
activity must be a “but-for” cause of the challenged employ-
ment decision. Motivating-factor instructions are not proper.
One frequently filed type of action in which the causation stan-
dard remains less clear is the Title VII disparate-treatment
discrimination claim under 42 U.S.C. § 2000e-2. A plaintiff’s claim
may arise under § 2000e-2(a), which makes it unlawful for an
employer to discriminate “because of” an impermissible factor, or
§ 2000e-2(m), which makes it unlawful for an employer to discrim-
inate for impermissible reasons even if the employer’s motivations
for acting also included legitimate reasons.3
There are many cases that describe a § 2(a) case as a “pretext”
case and a § 2(m) case as a “mixed-motive” case. This use of the
labels “pretext” and “mixed-motive,” while widespread and long-
standing, can be confusing and is not used for § 2(a) or § 2(m)
cases in these instructions. More recent decisions have clarified
that labeling a Title VII disparate-treatment case as a “pretext
case” does not determine the causation standard. Both § 2(a) and
§ 2(m) allow what the Fifth Circuit has referred to as a
“permissive-pretext” instruction.4 When a plaintiff shows that the
employer’s proffered reason for the employment decision is a
pretext for unlawful discrimination, the jury may, but is not
required to, infer discriminatory intent. This can happen under §
2(a) or § 2(m). To avoid confusion between this method of proof
and the alternative statutory theories, these instructions refer to
“§ 2(a) claims” or “§ 2(m) claims.”
As noted above, the law is now settled that § 2(m) claims
carry a “motivating-factor” causation standard. Section § 2(a)
claims appear to carry a “but-for” causation standard. 5 To
determine whether to instruct under § 2(a) or § 2(m), the court

3
See Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003) (stating that
§ 2(m) “establishe[d] an alternative for proving that an unlawful employ-
ment practice has occurred.” (citation and quotation omitted)).
4
See Ratliff v. City of Gainesville, Tex., 256 F.3d 355, 361 (5th Cir.
2001). But see Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 574 (5th
Cir. 2004) (recognizing that Ratliff is binding precedent but holding that
failure to give permissive pretext instruction is harmless error).
5
Section 2(m) states that “except as otherwise provided in this
subchapter,” the motivating-factor test applies when an unlawful motive
exists “even though other factors also motivated the practice.” Section

129
 PATTERN JURY INSTRUCTIONS

must decide whether, given the trial evidence, a reasonable jury

could conclude that the employer acted based on a single motivat-
ing factor or that the employer acted based on multiple factors, at
least one of which is legitimate.

Generally, a court gives a “but-for” causation instruction if it

determines that the trial evidence shows that: (1) the claim arises
under § 2(a); and (2) the only reasonable conclusion a jury could
reach is that discriminatory animus was either the sole cause or
played no role at all in the challenged employment action. In these
cases, the “same-decision” affirmative defense under 42 U.S.C.
§ 2000e-2(a)(g)(2) is not available.

A court generally gives the more relaxed “mixed-motive”

instruction if it determines that the trial evidence shows that: (1)
the claim arises under § 2(m); and (2) the jury could reasonably
find that discrimination is one of two or more reasons for the chal-
lenged action, at least one of which may be legitimate. Here, the
plaintiff has the burden of proving that discrimination was a
motivating factor in the challenged action, and the defendant may
invoke—if properly raised and supported—the “same-decision” af-
firmative defense.6 If so, the defendant has the burden of proving
that it would have taken the same action without regard to the
discriminatory factor.7

The most specific recent Fifth Circuit guidance on this point in

2(m) does not appear to abrogate § 2(a) and its “because of” standard. In
Gross and Nassar, the Supreme Court held that “because of” means “but-
for” causation, and applied that standard to claims unaffected by § 2(m).
Gross, 557 U.S. at 176–77; Nassar, 133 S. Ct. at 2533. It is therefore ap-
propriate to provide a “but-for” alternative for claims presented under §
2(a). Fisher v. Lufkin Indus. Inc., 847 F.3d 752, 757 (5th Cir. 2017). This is
also consistent with those Fifth Circuit cases applying “but-for” to claims
traditionally referred to as “pretext” cases. See, e.g., Guerra v. N.E. Indep.
Sch. Dist., 496 F.3d 415, 418 (5th Cir. 2007) (pre-Gross ADEA claim
explaining that “but for” applies in “pretext” cases). The Committee notes
that causation continues to be a subject of judicial scrutiny.
6
Garcia v. City of Hous., 201 F.3d 672, 675 (5th Cir. 2000) (“[T]o
prove a mixed-motive defense the employer should be able to present
some objective proof that the same decision would have been made.”).
Matthew R. Scott and Russell D. Chapman, Much Ado About Nothing—
Why Desert Palace Neither Murdered McDonnell Douglas Nor Transformed
All Employment Cases to Mixed Motive, 36 St. Mary’s L.J. 395, 401 n.81
(2005).
7
The plaintiff ’s burden of proving the “motivating factor” causation
standard is, of course, separate from the defendant’s burden to prove a
“mixed-motive” affirmative defense.

130
 EMPLOYMENT CLAIMS

a published opinion appears to be Smith v. Xerox Corp., 602 F.3d

320 (5th Cir. 2010), abrogated in part by Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517 (2013). In Smith, the Fifth Circuit
stated:

“At some point in the proceedings, . . . the District Court must

decide whether a particular case involves mixed motives.”
(quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n.12
(1989)). As explained by the en banc Ninth Circuit decision in
Desert Palace, “[o]nce at the trial stage, the plaintiff is required
to put forward evidence of discrimination ‘because of’ a
protected characteristic. After hearing both parties’ evidence,
the district court must decide what legal conclusions the evi-
dence could reasonably support and instruct the jury
accordingly. . . . [T]he choice of jury instructions depends
simply on a determination of whether the evidence supports a
finding that just one—or more than one-factor actually
motivated the challenged decision.” Costa v. Desert Palace,
Inc., 299 F.3d 838, 856 (9th Cir. 2002) (en banc). Put another
way, if the district court has before it substantial evidence
supporting a conclusion that both a legitimate and an illegiti-
mate (i.e., more than one) motive may have played a role in
the challenged employment action, the court may give a mixed-
motive instruction.
Smith, 602 F.3d at 333.

The Committee recognizes that both Smith and the case it

cites, Costa v. Desert Palace, were abrogated or reversed in part by
the Supreme Court’s opinions in Nassar (on Title VII retaliation
claims) and Desert Palace (on the proper causation standard under
§ 2000e-2(m)). And both were decided before the more recent cases
from the Supreme Court. But the quoted paragraph remains the
most recent Fifth Circuit guidance on when to use the causation
standards in a Title VII discrimination case. See also Zamora v.
City of Houston, 798 F.3d 326 (5th Cir. 2015).
Finally, in the 2009 Pattern Jury Instructions, the uncertainty
in the case law about when the “but-for” or “motivating-factor”
causation standard was appropriate led the Committee to use the
statutory generic language “because of” or “on account of” in certain
non-mixed-motive instructions. When appropriate under current
law, the instructions provide both “but-for” and motivating-factor
alternatives in stating the charge elements and the accompanying
jury questions. Some instructions continue to use the generic statu-
tory language—because of or on account of—in introducing partic-
ular liability theories.

131
11.1 PATTERN JURY INSTRUCTIONS

11.1 Title VII (42 U.S.C. § 2000e-2)—

Discrimination Based on Race, Color,
National Origin, Religion, or Sex (Disparate
Treatment)

A. Committee Notes

This charge is for Title VII discrimination cases in

which the plaintiff alleges intentional discrimination
because of a trait protected by Title VII race, color,
national origin, religion, or sex, resulting in an ‘‘adverse
employment action.’’ An adverse employment action for
Title VII discrimination claims based on race, color,
national origin, religion, or sex includes only ultimate
employment decisions such as hiring, discharging,
promoting, demoting, reassigning, or compensating.
Title VII does not cover every decision an employer
makes that might have some tangential effect on those
ultimate decisions. An employment action that does not
affect job duties, compensation, or benefits is not an
adverse employment action. The Supreme Court re-
cently held, in Bostock v. Clayton County, Georgia, 140
S. Ct. 1731, 1737, 1739 (2020), that Title VII also
forbids employers from discriminating against employ-
ees because of their sexual orientation or for being
transgender, applying a but-for standard.

Under the burden-shifting framework of McDon-

nell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
plaintiff must first make a prima facie pleading. The
burden of production then shifts to the defendant to
proffer a legitimate, nondiscriminatory reason for its
action. Vaughn v. Woodforest Bank, 665 F.3d 632, 636
(5th Cir. 2011). If it does that, “the presumption of
discrimination disappears.” Id. The plaintiff, who
always has the ultimate burden, must then “produce
substantial evidence indicating that the proffered legit-
imate nondiscriminatory reason is a pretext for
discrimination.” Outley v. Luke & Assoc., Inc., 840 F.3d
212, 216 (5th Cir. 2016). The McDonnell Douglas
burden-shifting framework “is applicable only in a
132
EMPLOYMENT CLAIMS 11.1
directed verdict or summary judgment situation,” and
does not apply in a trial on the merits. Kanida v. Gulf
Coast Med. Pers. LP, 363 F.3d 568, 575 (5th Cir. 2004)
(quoting Powell v. Rockwell Int’l Corp., 788 F.2d 279,
285 (5th Cir. 1986)).

A prima facie case requires the plaintiff to allege

facts showing that he or she: “(1) is a member of a
protected class; (2) was qualified for her position; (3)
was subject to an adverse employment action; and (4)
was replaced by someone outside the protected class,
or, in the case of disparate treatment, shows that oth-
ers similarly situated were treated more favorably.” Id.;
Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 426 (5th
Cir. 2017) (quoting Bryan v. McKinsey & Co., 375 F.3d
358, 360 (5th Cir. 2004)).

B. Charge

Plaintiff [name] claims that:

(For a § 2(a) case) [he/she] would not have been

[specify adverse employment action] but for [his/her]
[protected trait].

OR

(For a § 2(m) case) Defendant [employer’s name]’s

[specify adverse employment action] of Plaintiff [name]
was motivated by the Plaintiff [name]’s [protected trait].

The employer, Defendant [name], denies Plaintiff

[name]’s claims, and contends [specify contentions].

It is unlawful for an employer to discriminate

against an employee because of the employee’s [specify
protected trait]. An employer may, however [specify
adverse employment action] an employee for other
reasons, good or bad, fair or unfair.
133
11.1 PATTERN JURY INSTRUCTIONS

To prove unlawful discrimination, Plaintiff [name]

must prove by a preponderance of the evidence that:

1. Defendant [name] [specify adverse employment

action] Plaintiff [name];1 and

2. (For a § 2(a) case) Defendant [name] would

not have [specify adverse employment action]
Plaintiff [name] in the absence of—in other
words, but for—[his/her] [protected trait].

Plaintiff [name] does not have to prove that

unlawful discrimination was the only reason
Defendant [name] [specify adverse employment
action] [him/her]. But Plaintiff [name] must
prove that Defendant [name]’s decision to
[specify adverse employment action] [him/her]
would not have occurred in the absence of such
discrimination.

OR

(For a § 2(m) case) 2 Defendant [name]’s

[specify adverse employment action] of Plaintiff
[name] was motivated by [his/her] [protected
trait].

Plaintiff [name] does not have to prove that

1
In many cases, there is no dispute that the plaintiff experienced an
adverse employment action. The first element can simply identify the
employment action at issue, such as job termination, failure to promote,
demotion, or transfer. If there is a factual dispute about whether the chal-
lenged action was an adverse employment action, the first element should
be adjusted using the definition of adverse employment action set out
above, and the jury questions should include this issue.
2
The defendant may be entitled to a mixed-motive-affirmative-
defense instruction. The mixed-motive affirmative defense should be
submitted only when properly raised and when there is credible evidence
from which a reasonable jury could conclude that a mix of permissible and
impermissible reasons factored into the employer’s decision-making
process. When this defense applies, the standard is whether the defendant
shows that it would have made the same decision regardless of the
plaintiff ’s protected status. See Pattern Jury Instruction 11.13.

134
EMPLOYMENT CLAIMS 11.1
unlawful discrimination was the only reason
Defendant [name] [specify adverse employment
action] [him/her].3

(For either a § 2(a) or a § 2(m) case) If you find

that the reason Defendant [name] has given for [specify
adverse employment action] is unworthy of belief, you
may, but are not required to, infer that Defendant
[name] was motivated by Plaintiff’s [protected trait].4

3
If the case raises a cat’s paw issue of employer liability, see Pattern
Jury Instruction 11.7.
4
See Ratliff v. City of Gainesville, 256 F.3d 355, 361 (5th Cir. 2001).

135
11.1 PATTERN JURY INSTRUCTIONS

11.1 Pattern Jury Question, Title VII—

Discrimination Based on Race, Color,
National Origin, Religion or Sex (Disparate
Treatment)

JURY QUESTION

Question No. 11

Has Plaintiff [name] proved that

(For a § 2(a) case) [he/she] would not have been

[specify adverse employment action] in the absence
of—in other words, but for [his/her] [protected trait]?

OR

(For a § 2(m) case) [his/her] [protected trait] was a

motivating factor in Defendant [name]’s decision to
[specify adverse employment action] [him/her]?2

Answer “Yes” or “No.”

———————————

1
If there is a dispute as to whether the plaintiff was subject to an
adverse employment action, the first question may be as follows:

Question No. 1
Has Plaintiff [name] proved that Defendant [name]’s decision to
[specify challenged employment action] was an “adverse employment ac-
tion?
Answer “Yes” or “No.”
———————————
2
If the defendant is entitled to a mixed-motive-affirmative-defense
instruction, see Pattern Jury Instruction 11.13.

136
EMPLOYMENT CLAIMS 11.2
11.2 Title VII (42 U.S.C. § 2000E-2)—Supervisor
Harassment Without Tangible Employment
Action (Hostile Work Environment)

A. Committee Notes

This charge is for cases in which the plaintiff seeks

to impose vicarious liability on the employer for harass-
ment by a supervisor, whether the harassment contains
sexually explicit overtones or is based on race, color,
religion, national origin, or gender,1 and the plaintiff
did not experience a tangible employment action. The
underlying theory is that an agency relationship aided
the supervisor in creating a hostile or abusive work
environment.2 The pretext/motivating-factor distinction
is generally not a concern in this type of case.

This charge may be used when the alleged harasser

is a supervisor with immediate or successively higher
authority over the plaintiff. A supervisor whose conduct
can expose the employer to vicarious liability must be
one whom the employer has empowered to take tangible
employment action against the employee.3 Supervisory
status is not established merely by showing that the in-
1
There is often confusion about when the term “sex” and the term
“gender” are appropriate. The dictionary distinction is that “sex” generally
refers to either of the two forms of individuals distinguished on the basis
of reproductive organs and related physical differences, while “gender”
generally refers to the association of behavioral, cultural, or psychological
traits with a particular sex. Merriam-Webster Unabridged Dictionary,
http://unabridged. merriam-webster.com/unabridged/sex (last visited May
2, 2013). See, e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 157 n.1
(1994) (Scalia, J., dissenting) (“The word ‘gender’ has acquired the new
and useful connotation of cultural or attitudinal characteristics (as op-
posed to physical characteristics) distinctive to the sexes. That is to say,
gender is to sex as feminine is to female and masculine to male.”)
2
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758 (1998); Faragher
v. City of Boca Raton, 524 U.S. 775, 802 (1998).
3
Vance v. Ball State Univ., 570 U.S. 421, 431 (2013).

137
11.2 PATTERN JURY INSTRUCTIONS

dividual has the ability to direct the employee’s tasks

or manage the employee’s daily work.4

A “tangible employment action” is a significant

change in employment status, such as hiring, firing,
failing to promote, reassigning with significantly differ-
ent responsibilities, or a decision causing a significant
change in benefits.5

The employer may assert the Ellerth/Faragher af-

firmative defense. The elements of this affirmative
defense are that: (a) the employer exercised reasonable
care to prevent and correct promptly the harassing
behavior; and (b) the plaintiff unreasonably failed to
take advantage of any preventive or corrective op-
portunities provided by the employer, or to avoid harm
otherwise.6 This defense does not apply in a case involv-
ing harassment by a person who is not a direct, or suc-
4
If there is a factual dispute about whether the alleged harasser was
the plaintiff’s supervisor, the following instruction may be used:
to be a “supervisor,” the employer must have empowered the em-
ployee to make decisions about Plaintiff [name] that affect a signifi-
cant change in [his/her] work status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities,
or decisions causing a significant change in benefits. It is not enough
to have the ability to exercise direction over Plaintiff [name]’s daily
work.
Vance, 570 U.S. at 431–32.
If the case involves a defendant employer who concentrates decision-
making authority in a few individuals, the instruction may include the
following:
An employer who limits decision-making authority to a few individu-
als who in turn rely on recommendations by other workers who
interact with the employee may be held to have effectively delegated
the power to take tangible employment action to the worker on
whose recommendations it relies.
Vance, 570 U.S. at 446–47.
5
Vance, 570 U.S. at 429.
6
Faragher, 524 U.S. at 807.

138
EMPLOYMENT CLAIMS 11.2
cessively higher, supervisor, or in a case culminating in
a tangible employment action.7

If the case involves alleged sexual harassment by

an employer’s “proxy,” such as an owner, the employer
may be vicariously liable and the Ellerth/Faragher af-
firmative defense does not apply.8

B. Charge

Plaintiff [name] claims [he/she] was [sexually ha-

rassed] [harassed based on [his/her] [protected trait]]
by [his/her] supervisor and that [his/her] employer,
Defendant [name], is responsible for the harassing
conduct.

Defendant [name] denies the claims and contends

that [specify contentions].

It is unlawful for an employer to [sexually harass

an employee] [harass an employee because of that em-
ployee’s [protected trait]].

For Defendant [name] to be liable for [sexual

harassment] [harassment based on [protected trait]],
Plaintiff [name] must prove by a preponderance of the
evidence that [his/her] supervisor, [name], [engaged in
sexual harassment] [harassed Plaintiff [name] because
of Plaintiff [name]’s [protected trait]] and that the
harassment was sufficiently severe or pervasive to:

1. alter the terms or conditions of Plaintiff

[name]’s employment; and
7
Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 409 (5th Cir. 2002);
Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 383–84 (5th Cir. 2003).
8
In Ackel v. National Communications, Inc., 339 F.3d 376, 383 (5th
Cir. 2003), the court stated: “We read the Supreme Court’s opinions in
Faragher and Ellerth . . . [to state] that the employer is vicariously liable
for its employees’ activities in two types of situations: (1) there is a tangible
employment action or (2) the harassing employee is a proxy for the
employer.”

139
11.2 PATTERN JURY INSTRUCTIONS

2. create a hostile or abusive work environment.9

To determine whether the conduct in this case rises

to a level that altered the terms or conditions of
Plaintiff [name]’s employment, you should consider all
of the circumstances, including: the frequency of the
conduct; its severity; whether it is physically threaten-
ing or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with Plaintiff
[name]’s work performance.10 There is no requirement
that the conduct be psychologically injurious.11

Harassment may include extremely insensitive

conduct [based on sex] [because of protected trait]. [Al-
though sexual harassment must be based on sex, it need
not be motivated by sexual desire.12] Simple teasing,
offhand comments, sporadic use of offensive language,
occasional jokes related to [sex] [protected trait], and
isolated incidents (unless extremely serious) will gener-
ally not amount to discriminatory changes in the terms
and conditions of employment. But discriminatory
intimidation, ridicule, [sexual advances, requests for
sexual favors if sexual harassment asserted] or other
verbal or physical conduct because of Plaintiff [name]’s
[protected trait] may be sufficiently extreme to alter the
terms and conditions of employment.13

In determining whether a hostile or abusive work

environment existed, you must consider the evidence
from both Plaintiff [name]’s perspective and from the
perspective of a reasonable person. First, Plaintiff
[name] must actually find the conduct offensive. Next,
9
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66–67 (1986).
10
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
11
Harris, 510 U.S. at 22.
12
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
13
Harris, 510 U.S. at 21; Gardner v. CLC of Pasagoula, 915 F.3d 320,
325 (5th Cir. 2019); Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d
157, 163 (5th Cir. 2007) (quoting Faragher, 524 U.S. at 788).

140
EMPLOYMENT CLAIMS 11.2
you must look at the evidence from the perspective of a
reasonable person’s reaction to a similar environment
under similar circumstances. You cannot view the evi-
dence from the perspective of an overly sensitive person.
Nor can you view the evidence from the perspective of
someone who is never offended. Rather, the alleged
harassing behavior must be such that a reasonable
person in the same or similar circumstances as Plaintiff
[name] would find the conduct offensive.14

(For a case in which there is a dispute about

whether the harasser is the plaintiff’s supervisor)

To be a “supervisor,” the employer must have

empowered the employee to make decisions about
Plaintiff [name] that effect a significant change in [his/
her] work status, such as hiring, firing, failing to
promote, reassignment with significantly different re-
sponsibilities, or decisions causing a significant change
in benefits. It is not enough to have the ability to
exercise direction over Plaintiff [name]’s daily work.15

(For a case in which the defendant asserts the

Ellerth/Farragher affirmative defense)

If you find that Plaintiff [name] was [sexually ha-

rassed] [harassed because of [his/her] protected trait],
then you must find for Plaintiff [name] unless Defen-
dant [name] proves by a preponderance of the evidence
that:
14
Oncale, 523 U.S. at 81.
15
Vance, 570 U.S. at 446–47. If the case involves a defendant employer
who concentrates decision-making authority in a few individuals, the
instruction may include the following:
An employer who limits decision-making authority to a few individu-
als who in turn rely on recommendations by other workers who
interact with the employee may be held to have effectively delegated
the power to take tangible employment action to the worker on
whose recommendations it relies.
Vance, 570 U.S. at 446–47.

141
11.2 PATTERN JURY INSTRUCTIONS

1. Defendant [name] exercised reasonable

care to prevent and correct promptly the harassing
behavior; and

2. Plaintiff [name] unreasonably failed to take

advantage of any preventive or corrective op-
portunities provided by Defendant [name] or to
avoid harm otherwise. If Defendant [name] proves
both elements, you must find for Defendant
[name].16

16
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. The Ellerth/
Faragher instruction is appropriately given only if the affirmative defense
is properly raised. See also E.E.O.C. v. Boh Bros. Const. Co., LLC, 731
F.3d 444, 462–66 (5th Cir. 2013).

142
EMPLOYMENT CLAIMS 11.2
11.2 Pattern Jury Questions, Supervisor Sexual
and Other Harassment without Tangible
Employment Action (Hostile Work
Environment)

JURY QUESTIONS

Question No. 1

Has Plaintiff [name] proved that [he/she] was

[sexually harassed] [harassed because of [his/her]
[protected trait]] by [his/her] supervisor [name]?

Answer “Yes” or “No.”

———————————

(For a case in which the Ellerth/Faragher af-

firmative defense is asserted)

If you answered “Yes” to Question No. 1, then

answer Question No. 2.

Question No. 2

Has Defendant [name] proved that it exercised rea-

sonable care to prevent and promptly correct the
harassing behavior?

Answer “Yes” or “No.”

———————————

If you answered “Yes” to Question No. 2, then

answer Question No. 3.

143
11.2 PATTERN JURY INSTRUCTIONS

Question No. 3

Has Defendant [name] proved that Plaintiff [name]

unreasonably failed to take advantage of or use [specify
preventive or corrective opportunities] provided by
Defendant [name] or to avoid harm otherwise?

Answer “Yes” or “No.”

———————————

144
EMPLOYMENT CLAIMS 11.3
11.3 Title VII (42 U.S.C. § 2000E-2)—Supervisor
Sexual Harassment with Tangible
Employment Action (Quid Pro Quo)

A. Committee Notes

This charge is for cases in which the plaintiff al-

leges a tangible employment action because he or she
rejected sexual advances, requests, or demands by a
supervisor with immediate or successively higher
authority over the plaintiff.1 A tangible employment ac-
tion is a significant change in employment status, such
as hiring, firing, demotion, failing to promote, reassign-
ment with significantly different responsibilities, unde-
sirable reassignment,2 or a significant change in
benefits.3

Constructive discharge can constitute the tangible

employment action that a quid pro quo sexual-
1
If there is a factual dispute about whether the alleged harasser was
the plaintiff’s supervisor, the following instruction may be used:
to be a “supervisor,” the employer must have empowered the em-
ployee to make decisions about Plaintiff [name] that effect a signifi-
cant change in [his/her] work status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities,
or decisions causing a significant change in benefits. It is not enough
to have the ability to exercise direction over Plaintiff [name]’s daily
work.
Vance v. Ball State Univ., 570 U.S. 421, 431–32 (2013).
If the case involves a defendant employer who concentrates decision-
making authority in a few individuals, the instruction may include the
following:
An employer who limits decision-making authority to a few individu-
als who in turn rely on recommendations by other workers who
interact with the employee may be held to have effectively delegated
the power to take tangible employment action to the worker on
whose recommendations it relies.
Vance, 570 U.S. at 446–47.
2
Whether a reassignment is undesirable should be assessed from an
objective standpoint. See generally, Harris v. Victoria Indep. Sch. Dist.,
168 F.3d 216, 221 (5th Cir. 1999). If this is a disputed fact, the instruc-
tions and jury question should be adjusted.
3
Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998).

145
11.3 PATTERN JURY INSTRUCTIONS

harassment claim requires.4 See Pattern Jury Instruc-

tion 11.6.

B. Charge

Plaintiff [name] claims [he/she] was [specify tan-

gible employment action], resulting from [his/her] rejec-
tion of [supervisor’s name] [sexual advances, requests,
or demands.]

Defendant [name] denies Plaintiff [name]’s claims

and contends that [specify Defendant’s contentions].

It is unlawful for an employer to discriminate

against an employee because the employee rejects a
supervisor’s sexual advances, requests, or demands.

For Defendant [name] to be liable for sexual harass-

ment, Plaintiff [name] must prove by a preponderance
of the evidence that:

1. [His/her] supervisor [name] made sexual ad-

vances, requests, or demands to Plaintiff
[name];

2. Plaintiff [name] rejected [his/her] supervisor’s

sexual advances, requests, or demands;
4
See Green v. Brennan, 136 S. Ct. 1769, 1776–77 (2016) (“The
constructive-discharge doctrine contemplates a situation in which an
employer discriminates against an employee to the point such that his
‘working conditions become so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign . . . [w]hen the
employee resigns in the face of such circumstances, Title VII treats that
resignation as tantamount to an actual discharge.”) (quotation omitted);
Johnson v. Halstead, 916 F.3d 410, 420–21 (5th Cir. 2019); Aryain v.
Wal-Mart Stores Tex. LP, 534 F.3d 473, 480 (5th Cir. 2008) (stating that a
constructive discharge is a tangible employment action in some
circumstances).

146
EMPLOYMENT CLAIMS 11.3
3. Defendant [name] [specify tangible employment
action] Plaintiff [name];5 and

4. Defendant [name] [specify tangible employment

action] Plaintiff [name] because of [his/her]
rejection of [his/her] supervisor’s sexual ad-
vances, requests, or demands.6

Plaintiff [name] does not have to prove that [his/

her] rejection of the sexual advances, requests, or
demands was the only reason Defendant [name] [specify
tangible employment action] [him/her]. But Plaintiff
[name] must prove that Defendant [name]’s decision to
[specify tangible employment action] [him/her] would
not have occurred in the absence of [his/her] rejection of
those advances, requests, or demands.

If you find that the reason Defendant [name] has

given for [specify tangible employment action] is
unworthy of belief, you may, but are not required to,
infer that Defendant [name] would not have [specify
tangible employment action] Plaintiff [name] but for
[his/her] rejection of supervisor [name]’s sexual ad-
vances, requests, or demands.

5
If there is a factual dispute about whether the plaintiff suffered a
tangible employment action, the charge should be adjusted using the defi-
nition of tangible employment action, and the jury questions should be
adjusted accordingly.
6
It is unusual for a mixed-motive theory of liability to be asserted in
the quid pro quo context. These instructions focus on the most common
case presentations. In the event a mixed-motive theory is presented, the
following instruction may be used:
Plaintiff [name] claims that Defendant [name]’s [specify tangible
employment action] of [him/her] was motivated by [his/her] rejection
of supervisor [name]’s sexual advances, requests or demands.
Plaintiff [name] does not have to prove that [his/her] rejection of
[supervisor’s name]’s advances, requests or demands was the only
reason Defendant [name] [specify tangible employment action]
[him/her].

147
11.3 PATTERN JURY INSTRUCTIONS

11.3 Pattern Jury Question, Supervisor Sexual

Harassment with Tangible Employment
Action (Hostile Work Environment—Quid
Pro Quo)

JURY QUESTION

Question No. 11

Has Plaintiff [name] proved that [he/she] would not

have been [specify tangible employment action] but for
[his/her] rejection of supervisor [name]’s sexual ad-
vances, requests, or demands?2

Answer “Yes” or “No.”

———————————

1
If there is a fact dispute about whether the plaintiff experienced a
tangible employment action, the first question could be: “Did Plaintiff
[name] suffer a tangible employment action?”
2
This jury question uses but-for causation. In a mixed-motive case,
the question could be adjusted to ask: “Was Defendant [name]’s [specify
tangible employment action] of Plaintiff [name] motivated by [his/her]
rejection of supervisor [name]’s sexual advances, requests, or demands?”

148
EMPLOYMENT CLAIMS 11.4
11.4 Title VII (42 U.S.C. § 2000E-2) Coworker or
Third-Party Harassment Without Tangible
Employment Action (Hostile Work
Environment—Negligence)

A. Committee Notes

This charge is for cases in which the plaintiff seeks

to impose liability on an employer based on a negligence
theory. This theory requires the plaintiff to prove that
the defendant employer knew, or in the exercise of rea-
sonable care should have known, that the plaintiff was
being harassed by a coworker or third-party and that
the harassment was sexual or contained sexually ex-
plicit overtones, or was based on race, color, religion,
national original, or gender.1 Under a negligence the-
ory, if the defendant employer knew or should have
known of the harassment, then the defendant had a
duty to take prompt remedial action designed to stop
it.2 This charge can be used when the alleged harasser
is a coworker or a third-party. 3 When the alleged
harasser is a supervisor, vicarious liability for allowing
the harassment, not a negligence theory, is appropriate
1
Williamson v. City of Hous., 148 F.3d 462, 466 (5th Cir. 1998). This
charge is for use in coworker and third-party harassment cases not involv-
ing a tangible employment action. No affirmative-defense instruction is
provided. See Faragher v. City of Boca Raton, 524 U.S. 775, 807–08 (1998)
(stating that an employer may be held vicariously liable “for an actionable
hostile environment created by a supervisor with immediate (or succes-
sively higher) authority over the employee. 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”).
Faragher, 524 U.S. at 807. The defense has two parts: (a) that the
employer exercised reasonable care to prevent and correct promptly any
sexually harassing behavior; and (b) that the plaintiff employee unreason-
ably failed to take advantage of any preventive or corrective opportunities
the employer provided or to “avoid harm otherwise.” Faragher, 524 U.S. at
807. The Faragher affirmative defense does not apply when the employee
complains “of harassment by someone other than a supervisor.” Beckford
v. Dep’t of Corr., 605 F.3d 951, 960-61 (11th Cir. 2010).
2
Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir. 1993).
3
Sharp v. City of Hous., 164 F.3d 923, 928–29 (5th Cir. 1999).

149
11.4 PATTERN JURY INSTRUCTIONS

and Pattern Jury Instruction 11.2 or 11.3 should be

used.4

B. Charge

Plaintiff [name] claims [he/she] was [sexually ha-

rassed] [harassed because of [his/her] [protected trait]]
by [harasser’s name] and that [his/her] employer,
Defendant [name], knew, or in the exercise of reason-
able care should have known, of the harassment but
did not take prompt remedial action.

Defendant [name] denies Plaintiff [name]’s claims

and contends that [specify contentions].

It is unlawful for an employer to fail to take reme-

dial action when the employer knew, or should have
known, that a coworker or third-party [sexually ha-
rassed an employee] [harassed an employee because of
that employee’s [protected trait]].

For Defendant [name] to be liable for [sexual

harassment] [protected-trait harassment], Plaintiff
[name] must prove by a preponderance of the evidence
that [harasser’s name] [engaged in sexual harassment]
[harassed Plaintiff [name] because of Plaintiff [name]’s
[protected trait] and:

1. the conduct was sufficiently severe or pervasive

to:
4
In Vance, 570 U.S. at 444–45 & n.13–14, the Court noted that it is
confusing for jurors to have instructions on alternative liability theories
under which different parties bear the burden of proof. The Court also
noted that supervisor status will determine whether the employee has to
prove negligence in allowing the harassment or the employer has to prove
the Ellerth/Faragher affirmative defense. Although the Fifth Circuit in
Sharp examined the plaintiff’s claims against her supervisors under a
negligence standard, Sharp was tried before the Supreme Court’s deci-
sions on vicarious liability for supervisor harassment in Ellerth and
Faragher. Sharp, 164 F.3d at 929.

150
EMPLOYMENT CLAIMS 11.4
a. alter the terms or conditions of Plaintiff
[name]’s employment; and

b. create a hostile or abusive work environ-

ment;5 and

2. Defendant [name] knew, or in the exercise of

reasonable care should have known, that Plain-
tiff [name] was being [sexually harassed] [ha-
rassed because of the Plaintiff [name]’s [pro-
tected trait]]. To make this showing, Plaintiff
[name] must prove that:

a. the harassment was known by or com-

municated to a person who had the author-
ity to receive, address, or report the com-
plaint, even if that person did not do so,6 or
the harassment was so open and obvious
that Defendant [name] should have known
of it;7 and

b. Defendant [name] failed to take prompt re-

medial action designed to stop the
harassment.

To determine whether the conduct in this case rises

to a level that altered the terms or conditions of
Plaintiff [name]’s employment, you should consider all
of the circumstances, including: the frequency of the
conduct; its severity; whether it was physically threat-
ening or humiliating, or a mere offensive utterance;
and whether it unreasonably interfered with Plaintiff
5
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66–67 (1986).
6
Williamson, 148 F.3d at 466–67.
7
Sharp, 164 F.3d at 929.

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11.4 PATTERN JURY INSTRUCTIONS

[name]’s work performance.8 There is no requirement

that the conduct be psychologically injurious.9

Harassment may include extremely insensitive

conduct [based on sex] [based on protected trait]. [Al-
though sexual harassment must be based on sex, it need
not be motivated by sexual desire.10] Simple teasing,
offhand comments, sporadic use of offensive language,
occasional jokes related to [sex] [protected trait], and
isolated incidents (unless extremely serious) will gener-
ally not amount to discriminatory changes in the terms
and conditions of employment. But discriminatory
intimidation, ridicule, [unwelcome sexual advances,
requests for sexual favors if sexual harassment is as-
serted], or other verbal or physical conduct because of
Plaintiff [name]’s [protected trait] may be sufficiently
extreme to alter the terms and conditions of
employment.11

In determining whether a hostile work environ-

ment existed, you must consider the evidence from both
Plaintiff [name]’s perspective and from the perspective
of a reasonable person. First, Plaintiff [name] must
actually find the conduct offensive. Next, you must look
at the evidence from the perspective of a reasonable
person’s reaction to a similar environment under simi-
lar circumstances. You cannot view the evidence from
the perspective of an overly sensitive person. Nor can
you view the evidence from the perspective of someone
who is never offended. Rather, the alleged harassing
behavior must be such that a reasonable person in the
same or similar circumstances as Plaintiff [name] would
find the conduct offensive.12
8
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
9
Harris, 510 U.S. at 22.
10
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
11
Harris, 510 U.S. at 21.
12
Oncale, 523 U.S. at 81.

152
EMPLOYMENT CLAIMS 11.4
“Prompt remedial action” is conduct by the em-
ployer that is reasonably calculated to stop the harass-
ment and remedy the situation. Whether the employer’s
actions were prompt and remedial depends on the facts.
You may look at, among other things, the effectiveness
of any actions taken.13

13
Waltman v. Int’l Paper Co., 875 F.2d 468, 479 (5th Cir. 1989).

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11.4 PATTERN JURY INSTRUCTIONS

11.4 Pattern Jury Questions, Coworker or

Third-Party Harassment without Tangible
Employment Action (Hostile Work
Environment—Negligence)

JURY QUESTIONS1

Question No. 1

Did [harasser’s name] [[sexually harass] Plaintiff

[name]] [harass Plaintiff [name] because of [his/her]
[protected trait]]?

Answer “Yes” or “No.”

———————————

If you answered “Yes” to Question No. 1, then

answer Question No. 2:

Question No. 2

Did Defendant [name] know, or in the exercise of

reasonable care should Defendant [name] have known,
that Plaintiff [name] was being [harassed on the basis
of [protected trait]] [sexually harassed]?

Answer “Yes” or “No.”

———————————
1
The pretext/mixed-motive debate is not as likely to be a concern in
this type of case as it is in the tangible-employment-action case. It would
be unusual if either party could credibly claim that an employee was suf-
ficiently harassed to alter terms or conditions of employment in part
because of race, color, religion, gender, or national origin and in part
because of unprotected factors. The Committee suggests using the
“because of” causation standard here.

154
EMPLOYMENT CLAIMS 11.4
If you answered “Yes” to Question No. 2, then
answer Question No. 3:

Question No. 3

Did Defendant [name] fail to take prompt remedial

action?

Answer “Yes” or “No.”

———————————

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11.5 PATTERN JURY INSTRUCTIONS

11.5 Title VII—Retaliation

A. Committee Notes

This charge is for Title VII cases in which the

plaintiff alleges an adverse employment action 1 as
retaliation for engaging in activity that is protected by
Title VII. An “adverse employment action” is not limited
to acts or harms that occur at the workplace. It covers
those employer actions that could well dissuade a rea-
sonable worker from making or supporting a charge of
discrimination.2

Title VII’s anti-retaliation provision contains two

clauses: the “opposition clause” and the “participation
clause.” 42 U.S.C. § 2000e-3(a). The opposition clause
prohibits retaliation against an employee for opposing
any practice made unlawful by Title VII. The participa-
tion clause protects activities that occur in conjunction
with or after the filing of an EEOC charge.3 This jury
charge addresses each type of claim.

“Protected activity” includes opposing an employ-

ment practice that is unlawful under Title VII by mak-
ing a charge of discrimination, or testifying, assisting,
or participating in any manner in an investigation,
proceeding, or hearing under Title VII. If the claim is
for opposing an employment practice, the plaintiff must
1
In most cases, whether an employee experienced an adverse employ-
ment action will not be disputed. Examples are actions such as firing,
denial of promotion, or demotion. If there is a factual dispute, the charge
and jury questions should be adjusted accordingly. An “adverse employ-
ment action” is one that a reasonable employee would have found “to be
materially adverse.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657
(5th Cir. 2012), cert. denied, 133 S. Ct. 136 (2012). In the retaliation
context, a materially adverse action is one that “well might have dis-
suaded a reasonable worker from making or supporting a charge of
discrimination.” Hernandez, 670 F.3d at 657.
2
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 58–59
(2006).
3
Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 520 (5th
Cir. 2001); 42 U.S.C. § 2000e-3.

156
EMPLOYMENT CLAIMS 11.5
prove that he or she had a reasonable good-faith belief
that the practice was unlawful under Title VII.4

B. Charge
4
Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). When the
employee has opposed an employment practice that is not unlawful under
Title VII, the court should instruct the jury that the employee’s actions
must be based on a reasonable, good-faith belief that the practice opposed
actually violated Title VII, even if that belief was ultimately mistaken.
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001). In EEOC v. Rite Way
Serv., Inc., 819 F.3d 235, 237 (5th Cir. 2016), the Fifth Circuit stated that
in Clark County School District, the Supreme Court did not decide whether
a reasonable-belief standard applies to an employee’s retaliation claim,
because in that case, the Court found that no one could reasonably believe
that the incident violated Title VII. The Fifth Circuit held that it is gener-
ally settled in the circuit courts that “a plaintiff contending that she was
retaliated against for proactively reporting employment discrimination
need not show that the discrimination rose to the level of a Title VII viola-
tion, but must at least show a reasonable belief that it did.” Rite Way
Serv., 819 F.3d at 237 (citing 2 LEX K. LARSON, EMPLOYMENT DISCRIMINATION
§ 34.02[2], at 34–40 (2d ed. 2015)). A reasonable, good-faith belief that
discrimination occurred requires a subjective belief that the employer’s
behavior was discriminatory. In addition, the belief must be objectively
reasonable in light of the circumstances. If the plaintiff employee engaged
in participation-clause activity, that activity is protected under Title VII,
and no good-faith inquiry is necessary. See Pettway v. Am. Cast Iron Pipe
Co., 411 F.2d 998, 1006–07 (5th Cir. 1969) (an employee’s basis, or lack of
basis, for filing an EEOC complaint is irrelevant in evaluating a retalia-
tion claim); see also Jones v. Flagship Intern., 793 F.2d 714, 725–26 (5th
Cir. 1986) (citing Pettway). Other circuits agree that the “reasonable,
good-faith belief” test does not apply to a retaliation claim based on the
participation clause. See, e.g., Slagle v. Cty. of Clarion, 435 F.3d 262 (3d
Cir. 2006); Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir. 2000)
(stating that the participation clause’s protections “are not lost if the em-
ployee is wrong on the merits of the charge” or even “if the contents of the
charge are malicious or defamatory”); Brower v. Runyon, 178 F.3d 1002,
1006 (8th Cir. 1999) (“The underlying charge need not be meritorious for
related activity to be protected under the participation clause.”). The
Seventh and Second Circuits have held that the “good faith, reasonable”
requirement applies in claims brought under both opposition and the
participation clauses. See Mattson v. Caterpillar, Inc., 359 F.3d 885 (7th
Cir. 2004); see also Ray v. Ropes & Gray LLP, 799 F.3d 99 (1st Cir. 2015)
(a plaintiff need not reasonably believe in the validity of the underlying
charges but leaving it open whether the “good faith” requirement applies
to a participation-clause claim); Cox v. Onondaga Cty. Sherriff’s Dep’t, 760
F.3d 139, 148 (2d Cir. 2014) (applying the good-faith requirement in retali-
ation claims without distinguishing claims based on the opposition clause
or the participation clause).

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11.5 PATTERN JURY INSTRUCTIONS

Plaintiff [name] claims that [he/she] was retaliated

against by Defendant [name] for engaging in activity
protected by Title VII. Plaintiff [name] claims that [he/
she] [specify protected activity]. Plaintiff [name] claims
that Defendant [name] retaliated against [him/her] by
[specify adverse action].

Defendant [name] denies Plaintiff [name]’s claims

and contends that [specify contentions].

It is unlawful for an employer to retaliate against

an employee for engaging in activity protected by Title
VII. To prove unlawful retaliation, Plaintiff [name]
must prove by a preponderance of the evidence that:

1. Plaintiff [name] engaged in [specify protected

activity];5
5
If there are factual disputes about whether the plaintiff experienced
an adverse employment action or whether he or she engaged in activity
protected by Title VII, the charge and jury questions should be adjusted
accordingly. Whether activity is protected by Title VII will generally be
determined by the court as a matter of law, particularly for participation-
clause cases. If there is no dispute or the issues are not contested, the
charge may simply specify the adverse action and protected activity at
issue. If there are disputes, the charge should be adjusted using the defini-
tions of protected activity and adverse employment action.
If there is a dispute in an opposition-clause case about whether the
plaintiff engaged in protected activity, the following instruction may be
used:
For the first element, Plaintiff [name] claims that [he/she] engaged
in protected activity when [he/she] [specify opposition clause
activity]. That action is “protected activity” if it was based on
Plaintiff [name]’s good-faith, reasonable belief that Defendant
[name] discriminated against [him/her/another employee] because of
[his/her] [protected trait]. To show a good-faith belief, Plaintiff
[name] must show that [he/she] honestly believed that Defendant
[name] discriminated against [him/her/another employee] because of
[his/her] [protected trait]. To show a reasonable belief, Plaintiff
[name] must show that a reasonable person would, under the cir-
cumstances, believe that Defendant [name] discriminated against
[him/her/another employee] because of [his/her] [protected trait].
Plaintiff [name] does not have to prove that Defendant [name] actu-
ally discriminated against [him/her/another employee] because of

158
EMPLOYMENT CLAIMS 11.5
2. Defendant [name] [specify adverse employment
action] Plaintiff [name];6 and

3. Defendant [name]’s decision to [specify adverse

employment action] Plaintiff [name] was on ac-
count of [his/her] protected activity.7

You need not find that the only reason for Defen-
dant [name]’s decision was Plaintiff [name]’s [protected
activity]. But you must find that Defendant [name]’s
decision to [specify adverse employment action] Plaintiff
[name] would not have occurred in the absence of—but
for—[his/her] [protected activity].

If you disbelieve the reason Defendant [name] has

given for its decision, you may, but are not required to,
infer that Defendant [name] would not have decided to
[specify adverse employment action] Plaintiff [name]
but for [him/her] engaging in the protected activity.

[his/her] [protected trait]. But [he/she] must prove that [he/she] had
a good-faith, reasonable belief that Defendant [name] did so.
6
If there is a dispute about to whether the plaintiff experienced an
adverse employment action, the following instruction may be used:
For the second element, Plaintiff [name] claims that Defendant
[name] took an adverse employment action against [him/her] when
Defendant [name] [specify action]. You must decide whether [specify
action] is an “adverse employment action.” An “adverse employment
action” is an action that would have made a reasonable employee
reluctant to make or support a charge of discrimination. If a reason-
able employee would be less likely to complain about or oppose al-
leged discrimination because [he/she] knew that Defendant [name]
would [specify 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.
7
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 359–62 (2013).

159
11.5 PATTERN JURY INSTRUCTIONS

11.5 Pattern Jury Question, Title VII—

Retaliation

JURY QUESTION

Question No. 11

Do you find that Plaintiff [name] would not have

been [specify adverse action] but for [his/her] [specify
protected activity]?

Answer “Yes” or “No.”

———————————

1
The jury question will need to be adjusted if there is a factual
dispute about whether the plaintiff engaged in protected activity or
whether he or she suffered an adverse employment action.

160
EMPLOYMENT CLAIMS 11.6
11.6 Constructive Discharge

A. Committee Notes

This charge is for cases in which the plaintiff

resigned from his or her employment and was not
discharged but alleges that the resignation was a
“constructive discharge.”1 In a Title VII discrimination,
harassment, or retaliation case, proof of constructive
discharge may satisfy the element of an adverse
employment action. Constructive discharge can also be
the tangible employment action that a quid-pro-quo
sexual-harassment claim requires. A constructive dis-
charge finding may preclude an employer from the ben-
efit of the Ellerth/Faragher defense to vicarious
liability.2

B. Charge

Plaintiff [name] claims that although Defendant

[name] did not fire [him/her], [he/she] was constructively
discharged.

To prove constructive discharge, Plaintiff [name]

must prove by a preponderance of the evidence that
1
Wyatt v. Hunt Plywood, 297 F.3d 405, 410 n.15 (5th Cir. 2002) (a
constructive discharge constitutes a “tangible employment action”). See
also Green v. Brennan, 136 S. Ct. 1769, 1776–77 (2016) (“The constructive-
discharge doctrine contemplates a situation in which an employer
discriminates against an employee to the point such that his ‘working
conditions become so intolerable that a reasonable person in the employ-
ee’s position would have felt compelled to resign.’ . . . When the employee
resigns in the face of such circumstances, Title VII treats that resignation
as tantamount to an actual discharge.”) (quotation omitted).
2
The Fifth Circuit has stated that “[i]n certain circumstances, a
constructive discharge can be considered a tangible employment action
that precludes an employer from asserting the Ellerth/Faragher defense
to vicarious liability.” See Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473,
480 (5th Cir. 2008).

161
11.6 PATTERN JURY INSTRUCTIONS

[his/her] working conditions were so intolerable that a

reasonable employee would feel compelled to resign.3

“Intolerable working conditions” means more than

conditions that are uncomfortable or worse than an em-
ployee might prefer. Teasing, making offhand com-
ments, using offensive language, or making [protected
trait]-related jokes generally do not make working
conditions so intolerable that a reasonable person would
feel compelled to resign. Isolated incidents (unless
extremely serious) generally do not make working
conditions so intolerable that a reasonable person would
feel compelled to resign.

In determining whether Plaintiff [name] was

constructively discharged, you must consider the evi-
dence from both Plaintiff [name]’s perspective and the
perspective of a reasonable person.4 First, you must
look at the evidence from Plaintiff [name]’s perspective
and determine whether [he/she] actually felt compelled
to resign. Second, you must look at the evidence from
the perspective of a reasonable person’s reaction to a
similar environment under similar circumstances and
determine whether an objectively reasonable person
similarly situated would have felt compelled to resign.
You cannot view the evidence from the perspective of
an overly sensitive person. Nor can you view the evi-
dence from the perspective of someone who is never
offended. Rather, you must find that Plaintiff [name] in
fact found [his/her] working conditions intolerable and
also that a reasonable person in the same or similar
circumstances as Plaintiff [name] would find those
working conditions intolerable.
3
Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 444 (5th Cir. 2011); see
also Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001).
4
Guthrie v. J.C. Penney Co., 803 F.2d 202, 207 (5th Cir. 1986) (the in-
quiry in a constructive-discharge case focuses on both the employee’s state
of mind and the reaction of a reasonable employee in the employee’s
position).

162
EMPLOYMENT CLAIMS 11.6
To prove constructive discharge, Plaintiff [name]
must also prove the existence of an aggravating factor,
such as:

(1) demotion;

(2) reduction in compensation;

(3) reduction in job responsibilities;

(4) reassignment to menial or degrading

work;

(5) reassignment to work under a substan-

tially younger supervisor;5

(6) badgering, harassment, or humiliation by

the employer calculated to encourage the employ-
ee’s resignation; or

(7) offers of early retirement or continued

employment on terms less favorable than the em-
ployee’s former status.6

5
See Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000) (finding
this factor was not significant where plaintiff “was not forced to report to
a much younger supervisor but to a peer and friend”); cf. O’Connor v.
Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996) (“[T]he fact that a
replacement is substantially younger than the plaintiff is a far more reli-
able indicator of age discrimination than is the fact that the plaintiff was
replaced by someone outside the protected class.”).
6
Keelan v. Majesco Software, Inc., 407 F.3d 332, 342 (5th Cir. 2005).

163
11.6 PATTERN JURY INSTRUCTIONS

11.6 Pattern Jury Question, Constructive

Discharge

JURY QUESTION

Question No. 1

Was Plaintiff [name] constructively discharged?

Answer “Yes” or “No.”

———————————

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EMPLOYMENT CLAIMS 11.7
11.7 Cat’s Paw Theory of Employer Liability

A. Committee Notes

A plaintiff may use the “cat’s paw” theory to estab-

lish that his or her employer’s proffered reason for
termination is pretextual. This theory creates a basis
for employer liability when there is no evidence of
discriminatory or retaliatory bias against the plaintiff
by the decision-maker, but that decision-maker took
into account biased information—such as a negative
performance evaluation—provided by the plaintiff’s
supervisor in deciding to terminate the plaintiff’s
employment or to take another adverse employment
action. Under the cat’s paw theory, in Title VII cases
involving tangible employment actions, the plaintiff is
not required to prove that the employer knew or should
have known of the supervisor’s discriminatory or retal-
iatory bias in order to impute that bias to the employer,
even though the supervisor did not make the final
decision. The cat’s paw theory will allow imputation if:
(1) the supervisor does an act because of a discrimina-
tory or retaliatory bias against the plaintiff; (2) the
supervisor intends that the act will cause the plaintiff
to suffer an adverse employment action; and (3) that
act causes the ultimate employment action, even if the
supervisor did not make the ultimate employment
decision. Staub v. Proctor Hosp., 562 U.S. 411 (2011)
(applying “cat’s paw” theory to case brought under the
Uniformed Services Employment and Reemployment
Rights Act).

The Supreme Court has left open the question of

whether the cat’s paw theory applies to a discrimina-
tory or retaliatory act committed by a subordinate em-
ployee, or a plaintiff’s coworker, rather than a plaintiff’s
supervisor. Staub, 562 U.S. at 422 n.4 (“We express no
view as to whether the employer would be liable if a
coworker, rather than a supervisor, committed a
discriminatory act that influenced the ultimate employ-
165
11.7 PATTERN JURY INSTRUCTIONS

ment decision.”); see also Bissett v. Beau Rivage Resorts

Inc., 442 F. App’x 148, 154 n. 5 (5th Cir. 2011) (describ-
ing the issue as “open”). Despite the Supreme Court
leaving open the issue, the Fifth Circuit has consis-
tently held that under the cat’s paw theory, a plaintiff’s
coworker’s discriminatory remarks about the plaintiff
can be attributed to the supervisor who was charged
with making employment decisions, when it is shown
that the coworker influenced the superior’s decision.
See, e.g., Fisher v. Lufkin Indus., Inc., 847 F.3d 752,
758 (5th Cir. 2017) (an employer may be liable if the
agent who harbors retaliatory animus is a coworker,
rather than a supervisor); Haire v. Bd. of Sup’rs of La.
State Univ., 719 F.3d 356, 369 n. 11 (5th Cir. 2013)
(stating that an “employer is at fault [when] one of its
agents committed an action based on discriminatory
animus that was intended to cause, and did in fact
cause, an adverse employment action.”) (citing Staub,
131 S. Ct. at 1193; Roberson v. Alltel Info. Servs., 373
F.3d 647, 653 (5th Cir. 2004)); Shager v. Upjohn Co.,
913 F.2d 398, 405 (7th Cir. 1990); see also Valderaz v.
Lubbock Cty. Hosp. Dist., 611 F. App’x 816, 822 (5th
Cir. 2015) (“To invoke the cat’s paw analysis [in a
coworker context], [the plaintiff] must submit evidence
to establish two conditions: (1) that his coworkers
exhibited retaliatory animus, and (2) that they pos-
sessed leverage, or exerted influence, over [the
supervisor].”).

B. Charge for Supervisor Liability

In this case, the decision to [specify adverse employ-

ment action] Plaintiff [name] was made by [name of
decision-maker].1 Plaintiff [name] may show that, even
if there is no evidence of [discriminatory] [retaliatory]
bias on the part of [name of decision-maker], there is
evidence that [name of decision-maker] took into ac-
1
This instruction will have to be adjusted if there is a factual dispute
about who the decision-maker was or whether the decision-maker as well
as the immediate supervisor were biased against the plaintiff because of a
protected trait or protected activity.

166
EMPLOYMENT CLAIMS 11.7
count biased negative information provided by Plaintiff
[name]’s supervisor, [name], in deciding to [specify
adverse employment action] Plaintiff [name]. Plaintiff
[name] is not required to prove that Defendant [name]
or [name of decision-maker] knew or should have known
of [supervisor’s name]’s [discriminatory] [retaliatory]
bias. Plaintiff [name] must prove that [his/her] supervi-
sor, [name], performed an act because of [discrimina-
tion] [retaliation] against Plaintiff [name], and that act
was a proximate cause of the [name of decision-maker]’s
decision to [specify adverse employment action] Plaintiff
[name].

To succeed on this claim, Plaintiff [name] must

prove each of the following by a preponderance of the
evidence:

(If supervisory status is in dispute, begin with

this element. If there is no dispute as to
supervisory status, this element need not be
included.)

1. The person Plaintiff [name] alleges was

[his/her] supervisor was an individual who Defen-
dant [name] has empowered to take a tangible
employment action against Plaintiff [name]. 2
Supervisory status is not established merely by
showing that the individual has the ability to direct
the employee’s tasks or manage the employee’s
daily work.
2
See Vance v. Ball State Univ., 570 U.S. 421, 430–31 (2013). If the
case involves a defendant employer who concentrates decision-making
authority in a few individuals, the instruction may include the following:
An employer who limits decision-making authority to a few individu-
als who in turn rely on recommendations by other workers who
interact with the employee may be held to have effectively delegated
the power to take tangible employment action to the worker on
whose recommendations it relies.
Vance, 570 U.S. at 466–67.

167
11.7 PATTERN JURY INSTRUCTIONS

(Begin here if there is no dispute about super-

visory status):

(For pretext cases)

1. [Supervisor’s name] was motivated by

Plaintiff [name]’s [specify protected activity]
[protected trait] in [specify the act on which the
decision-maker relied, such as submitting a nega-
tive work evaluation or recommending termination
of employment];

2. Supervisor [name] intended that the act

would cause Plaintiff [name] to suffer an adverse
employment action; and

3. [Name of decision-maker] would not have

decided to [specify adverse employment action]
Plaintiff [name] but for—in the absence of—
[supervisor’s name]’s [specify act on which the
decision-maker relied].

OR

(For mixed-motive cases)

1. [Supervisor’s name] was motivated by

Plaintiff [name]’s [specify protected activity]
[protected trait] in [specify the act on which the
decision-maker allegedly relied, such as submitting
a negative work evaluation or recommending
termination of employment];

2. [Supervisor’s name] intended that the act

would cause Plaintiff [name] to suffer an adverse
employment action; and

3. [Supervisor name’s] act was a motivating

factor in [name of decision-maker]’s decision to
168
EMPLOYMENT CLAIMS 11.7
[specify adverse employment action] Plaintiff
[name].

C. Charge for Coworker Cat’s Paw Theory1

In this case, the decision to [specify adverse employ-

ment action] Plaintiff [name] was made by [name of
decision-maker]. Plaintiff may show that, even if there
is no evidence of [discriminatory] [retaliatory] bias on
the part of [decision-maker name], that [decision-maker
name] was influenced or unduly leveraged by Plaintiff’s
coworker [name], in deciding to [specify adverse employ-
ment action] Plaintiff. Plaintiff is not required to prove
that Defendant [name] or [decision-maker name] knew
or should have known of [coworker name]’s [discrimina-
tory] [retaliatory] bias. Plaintiff must prove, by a
preponderance of the evidence, that Plaintiff’s cowork-
er(s) [name(s)], due to their [discriminatory] [retalia-
tory] bias against Plaintiff, unduly influenced or lever-
aged [decision-maker name] in [specify adverse
employment action] Plaintiff, and that their influence
or leverage was a proximate cause of the [decision-
maker name]’s decision to [specify adverse employment
action] Plaintiff.2

To succeed on this claim, Plaintiff [name] must

prove each of the following by a preponderance of the
evidence:

(For pretext cases)

1
Reliance on this charge, and the pattern questions that follow,
should be preceded by careful analysis of the most recent case law. As
noted, it remains an open question whether the cat’s paw theory applies to
a discriminatory or retaliatory act committed by a subordinate employee,
or by a plaintiff ’s coworker, rather than by a plaintiff ’s supervisor. Staub,
131 S. Ct. at 1194 n.4. It is also unclear whether the cat’s paw theory in
the coworker context could apply to a pretext case and a mixed-motive
case. See Bissett, 442 F. App’x at 154.
2
See Fisher v. Lufkin Indus., Inc., 847 F.3d 752, 759 (5th Cir. 2017).

169
11.7 PATTERN JURY INSTRUCTIONS

1. Plaintiff’s coworker(s) [name(s)] exhibited [dis-

criminatory] [retaliatory] animus towards Plaintiff;

2. Due to this [discriminatory] [retaliatory] animus,

Plaintiff’s coworker(s) [name(s)] exerted influence or
leverage over [decision-maker name], with the intent of
[decision-maker name] [specify adverse employment ac-
tion] Plaintiff;

3. But for [name(s) of coworker(s)]’s influence,

[decision-maker name] would not have [specify adverse
employment action] Plaintiff.

OR

(For mixed-motive cases)

1. Plaintiff’s coworker(s) [name(s)] exhibited [dis-

criminatory] [retaliatory] animus towards Plaintiff;

2. Due to this [discriminatory] [retaliatory] animus,

Plaintiff’s coworker(s) [name(s)] exerted influence or
leverage over [decision-maker name], with the intent of
[decision-maker name] [specify adverse employment ac-
tion] Plaintiff;

3. The influence of [name(s) of coworker(s)] was a

motivating factor in [decision-maker name] [specify
adverse employment action] Plaintiff.

170
EMPLOYMENT CLAIMS 11.7
11.7 Pattern Jury Questions, Title VII—Cat’s
Paw Theory of Employer Liability
JURY QUESTIONS

Question No. 1 (if there is a dispute about

supervisory status)1

Has Plaintiff [name] proved that [supervisor’s

name] was a supervisor?

Answer “Yes” or “No.”

———————————

If you answered Question No. 1 “Yes,” then answer

Question No. 2.

(For pretext cases)

Question No. 2

Has Plaintiff [name] proved that [supervisor’s

name] would not have [specify the act on which the
decision-maker relied, such as submitting a negative
work evaluation or recommending termination of
employment] but for Plaintiff [name]’s [specify protected
activity] [specify protected trait]?

Answer “Yes” or “No.”

———————————

If you answered Question No. 2 “Yes,” then answer

Question No. 3.
1
If there is no dispute as to supervisory status, this question need
not be asked.

171
11.7 PATTERN JURY INSTRUCTIONS

Question No. 3

Has Plaintiff [name] proved that [supervisor’s

name] acted with the intent that Plaintiff [name] would
suffer an adverse employment action as a result of
[supervisor’s name]’s act?

Answer “Yes” or “No.”

———————————
If you answered Question No. 3 “Yes,” then answer
Question No. 4.

Question No. 4

Has Plaintiff [name] proved that [name of decision-

maker] would not have decided to [specify adverse
employment action] Plaintiff [name] in the absence of
[supervisor’s name]’s [specify act on which the decision-
maker relied]?

Answer “Yes” or “No.”

———————————

OR

(For mixed-motive cases)

Question No. 2

Has Plaintiff [name] proved that [his/her] supervi-

sor, [name], was motivated by Plaintiff [name]’s [specify
protected activity] [specify protected trait] when
[supervisor’s name] [specify the act on which the
172
EMPLOYMENT CLAIMS 11.7
decision-maker relied, such as submitting a negative
work evaluation or recommending termination of
employment]?

Answer “Yes” or “No.”

———————————

If you answered Question No. 2 “Yes,” then answer

Question No. 3.

Question No. 3

Has Plaintiff [name] proved that [supervisor’s

name] acted with the intent that Plaintiff [name] would
suffer an adverse employment action as a result of
[supervisor’s name]’s act?

Answer “Yes” or “No.”

———————————

If you answered Question No. 3 “Yes,” then answer

Question No. 4.

Question No. 4

Has Plaintiff [name] proved that [supervisor’s

name]’s [specify act on which the decision maker relied]
was a motivating factor in [name of decision-maker]’s
decision to [specify adverse employment action] Plaintiff
[name]?

Answer “Yes” or “No.”

———————————
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11.7 PATTERN JURY INSTRUCTIONS

JURY QUESTIONS FOR EMPLOYER LIABILITY

UNDER CAT’S PAW THEORY FOR COWORKER CONDUCT

(For pretext cases)

Question No. 1

Has Plaintiff [name] proved that Plaintiff’s cowork-

er(s) [name(s)] exhibited [discriminatory] [retaliatory]
animus towards Plaintiff?

Answer “Yes” or “No.”

———————————

If you answered Question No. 1 “Yes,” then answer

Question No. 2.

Question No. 2

Has Plaintiff proved that due to this [discrimina-

tory] [retaliatory] animus, Plaintiff’s coworker(s)
[name(s)] exerted influence or leverage over [decision-
maker name] with the intent of [decision-maker name]
[specify adverse employment action] Plaintiff?

Answer “Yes” or “No.”

———————————

If you answered Question No. 2 “Yes,” then answer

Question No. 3.

Question No. 3

Has Plaintiff proved that but for [name(s) of

174
EMPLOYMENT CLAIMS 11.7
coworker(s)]’s influence, [decision-maker name] would
not have [specify adverse employment action] Plaintiff?

Answer “Yes” or “No.”

———————————

(For mixed-motive cases)

Question No. 1

Has Plaintiff [name] proved that Plaintiff’s cowork-

er(s) [name(s)] exhibited [discriminatory] [retaliatory]
animus towards Plaintiff?

Answer “Yes” or “No.”

———————————

If you answered Question No. 1 “Yes,” then answer

Question No. 2.

Question No. 2

Has Plaintiff proved that due to this [discrimina-

tory] [retaliatory] animus, Plaintiff’s coworker(s)
[name(s)] exerted influence or leverage over [decision-
maker name] with the intent of [decision-maker name]
[specify adverse employment action] Plaintiff?

Answer “Yes” or “No.”

———————————

If you answered Question No. 2 “Yes,” then answer

Question No. 3.

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11.7 PATTERN JURY INSTRUCTIONS

Question No. 3

Has Plaintiff proved that the influence of [name(s)

of coworker(s)] was a motivating factor in [decision-
maker name] [specify adverse employment action]
Plaintiff?

Answer “Yes” or “No.”

———————————

176
EMPLOYMENT CLAIMS 11.7

THE ADA AND THE ADAAA

OVERVIEW

A. Types of Claims Covered

This charge is for use in disability cases under the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. This charge
does not cover cases involving access to public accommodations or
to public services. Rather, the charge addresses only cases involv-
ing the ADA’s employment provisions.
The ADA was amended significantly effective January 1, 2009
by the ADA Amendments Act of 2008 (“ADAAA”). The amend-
ments are not retroactive.2 The amendments broadened the ADA’s
definition of “disability,” particularly “regarded as” disability.
Under the amendments, “regarded as” disability is an “impairment
standard” under which “substantial limitation” and “major life
activities” are irrelevant.3 This impairment standard applies to
ADA claims that arise before the statutory amendment required
proof of disability. Failure-to-accommodate claims are subject to a
different standard.4 This charge includes a separate section on
failure-to-accommodate claims.

This charge can be used in both ADA and Rehabilitation Act

cases. Because ADA cases can involve a variety of fact situations,
some cases may implicate the actual disability prong, while others
may implicate all three prongs—actual disability, perceived dis-
ability, or a record of a disability. Many of the terms are statutory
or derived from the regulations, and many have technical
definitions. In many cases, only some of the instructions will ap-
ply, depending on the claims and defenses—including any of the

2
Because the ADAAA does not apply to claims arising before Janu-
ary 1, 2009, if a case involves such claims, the prior version of this charge
should be used.
3
42 U.S.C. § 12102(3)(A); 29 C.F.R. § 1630.2(g)(1)(iii), (l)(1); 29 C.F.R.
§ 1630.2(j)(2) (“Whether an individual’s impairment ‘substantially limits’ a
major life activity is not relevant to coverage under . . . (the ‘regarded as’
prong) of this section.”); see also 29 C.F.R. Part 1630 App. § 1630.2(j), 76
Fed. Reg. 16978, 17008 (Mar. 25, 2011) (“In any case involving coverage
solely under the ‘regarded as’ prong of the definition of ‘disability’ (e.g.,
cases where reasonable accommodation is not at issue), it is not necessary
to determine whether an individual is ‘substantially limited’ in any major
life activity.”); § 1630.2(l), 76 Fed. Reg. at 17014.
4
42 U.S.C. § 12201(h); 29 C.F.R. §§ 1630.2(o)(4), 1630.9(d).

177
11.7 PATTERN JURY INSTRUCTIONS

statutory affirmative defenses—raised by the pleadings and the

evidence.5

A prima facie case under the ADA requires the employee to

show that he or she: has a disability as defined in 42 U.S.C.
§ 12102(2); is qualified to perform the essential functions of the job
with or without reasonable accommodation; and has suffered an
adverse employment action on the basis of the disability. 42 U.S.C.
§ 12112(a). EEOC v. LHG Grp. Inc., 773 F.3d 688, 697 (5th Cir.
2014) (citing Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847,
853 (5th Cir. 1999)).

B. “Disability”

A “disability” is: (A) a physical or mental impairment that

substantially limits one or more of the major life activities; (B) a
record of such an impairment; or (C) being regarded as having
such an impairment. 42 U.S.C. § 12102(1).

As amended by the ADAAA, the ADA defines “major life activi-

ties” as including, but not limited to, caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrat-
ing, thinking, communicating, and working. 42 U.S.C.
§ 12102(2)(A). A “major life activity” also includes the operation of
a major bodily function, including but not limited to the immune
system, cell growth, digestion, elimination (bowel and bladder), the
nervous system, the brain, the respiratory system, circulation, the
endocrine system, and the reproductive system. 42 U.S.C.
§ 12102(2)(B).

C. “Physical or Mental Impairment”

An impairment that substantially limits one major life activity

need not limit other major life activities to be considered a
disability. 42 U.S.C. § 12102(4)(C). An impairment that is episodic
or in remission is a disability if it would substantially limit a ma-
jor life activity when active. 42 U.S.C. § 12102(4)(D). Whether an
impairment substantially limits a major life activity is determined
without regard to the ameliorative effects of such mitigating
measures as:

5
The ADAAA provides the following affirmative defenses: direct
threat (42 U.S.C. § 12113(b)); religious entity (42 U.S.C. § 12113(d)(1));
infectious or communicable disease (42 U.S.C. § 12113(e)(2)); illegal use of
drugs (42 U.S.C. § 12114(a)); undue hardship (42 U.S.C. § 12112(b)(5)(a));
and employment qualification standard, test, or selection criterion that is
job-related and consistent with business necessity (42 U.S.C. § 12113(a)).

178
EMPLOYMENT CLAIMS 11.7
1. medication, medical supplies, equipment, or appliances,
low-vision devices (which do not include ordinary eyeglasses or
contact lenses), prosthetics including limbs and devices, hear-
ing aids and cochlear implants or other implantable hearing
devices, mobility devices, or oxygen therapy equipment and
supplies;

2. use of assistive technology;

3. reasonable accommodations or auxiliary aids or ser-

vices (e.g., interpreters, readers, or acquisition or modification
of devices); or

4. learned behavioral or adaptive neurological

modifications.

42 U.S.C. § 12102(4)(E)(i).

D. “Regarded as Having Such an Impairment”

An individual meets the requirements of being regarded as

having an impairment “if the individual establishes that he or she
has been subjected to an action prohibited under this [Act] because
of an actual or perceived physical or mental impairment whether
or not the impairment limits or is perceived to limit a major life
activity.” 42 U.S.C. § 12102(3)(A). However, 42 U.S.C.
§ 12102(1)(C), the provision that includes “being regarded as hav-
ing such an impairment” in the definition of disability, does not
apply to impairments that are transitory (having an actual or
expected duration of 6 months or less) or minor. 42 U.S.C.
§ 12102(3)(B).

E. Knowledge of the Disability

An employer must have actual knowledge of an employee’s

disability before the employer may be exposed to liability for
discriminating on the basis of that disability.6 An employer may
clearly know of disabilities and other physical limitations. But un-
like other discrimination cases, the employee’s protected character-
istic in a disability-discrimination case may not always be im-
mediately obvious to the employer. Some symptoms are either not
apparent or are readily attributable to other causes. Other

6
Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417 (5th
Cir. 2017); see also Adeleke v. Dall. Area Rapid Transit, 487 F. App’x. 901,
903 (5th Cir. 2012) (citing Taylor v. Principal Fin. Grp., 93 F.3d 155, 163
(5th Cir. 1996)).

179
11.7 PATTERN JURY INSTRUCTIONS

symptoms are so obviously manifestations of an underlying dis-

ability that it would be reasonable to infer the employer’s actual
knowledge. An employer may know of disabilities that are not im-
mediately obvious, such as when an employee asks for an accom-
modation under the ADA and submits supporting medical
documentation.

F. A “Qualified” Individual with a Disability

To be protected by the ADA, an individual must be a “qualified

individual with a disability.” To be a qualified individual, one must
be able to perform the job’s essential functions with or without
reasonable accommodations. 42 U.S.C. § 12111(8).
G. “Essential Functions” of the Job

The term “essential functions” means the fundamental duties

of the position the plaintiff holds or for which he or she has applied.
The term does not include the position’s marginal functions. 29
C.F.R. § 1630.2(n)(1). The EEOC regulations suggest the following
considerations in determining the essential functions of an employ-
ment position: (1) the employer’s judgment as to which functions of
the job are essential; (2) written job descriptions prepared to
advertise a job or used to interview applicants; (3) the amount of
time spent on the job performing the function in question; (4) the
consequences of not requiring the person to perform the function;
(5) the terms of a collective bargaining agreement, if one exists; (6)
the work experience of persons who have held the job; and (7) the
current work experience of persons in similar jobs. 29 C.F.R.
§ 1630.2(n)(3). A temporary accommodation exempting an em-
ployee from certain job requirements does not demonstrate that
those job functions are nonessential.
H. “Reasonable Accommodation”

The ADA requires employers to make reasonable accommoda-

tions to allow disabled individuals to perform the essential func-
tions of their positions. A refusal to provide a reasonable accom-
modation can amount to a constructive discharge.

Although there is no precise test for determining what consti-

tutes a reasonable accommodation, the ADA does not require an
accommodation that would cause other employees to work harder,
to work longer hours, or to lose opportunities. An accommodation
is unreasonable if it imposes undue financial or administrative
burdens on the employer’s business or if it otherwise imposes an
undue hardship on the business operations. 42 U.S.C.
§ 12112(b)(5)(A). The “undue hardship” defense is discussed below.
180
EMPLOYMENT CLAIMS 11.7
The ADA states that “reasonable accommodation” may include:
“(A) making existing facilities used by the employees readily acces-
sible to and usable by individuals with disabilities; and (B) job re-
structuring, part-time or modified work schedules, reassignment to
a vacant position, acquisition or modification of equipment or de-
vices, appropriate adjustment or modifications of examinations,
training materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals
with disabilities.” 42 U.S.C. § 12111(9). An employer is not obli-
gated to provide an employee the accommodation he or she
requests or prefers. The requirement is for some reasonable
accommodation. A reasonable accommodation does not require an
employer to give an individual with disabilities preferential treat-
ment in job qualifications.

For more discussion of “reasonable accommodations” under

the ADA, see Pattern Jury Instruction 11.10.

I. The Interactive Process

Before an employer must make an accommodation for an indi-

vidual’s physical or mental condition, the employer must know
that such a condition exists. It is generally the individual’s
responsibility to request a reasonable accommodation. 29 C.F.R.
§ 1630 App. 1630.9. Once an individual has made such a request,
the ADA and its implementing regulations require that the parties
engage in an “interactive process” to determine what precise ac-
commodations are necessary. See 29 C.F.R. § 1630.2(o)(3), Part
1630 App. § 1630.9. The employer and the individual must work
together in good faith to help each other determine what accom-
modation is necessary. Several courts have held that an employer’s
failure to engage in an interactive process, standing alone, is insuf-
ficient to expose the employer to liability under the ADA. See, e.g.,
Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir.
2014) (“And while an employer’s failure to engage in the interac-
tive process alone is not an independent basis for liability, it is ac-
tionable ‘if it prevents identification of an appropriate accommoda-
tion for a qualified individual.’ ’’) (quoting Basden v. Prof’l Transp.,
Inc., 714 F.3d 1034, 1039 (7th Cir. 2013)).7 Although the regula-
tions provide that it “may be necessary” to engage in the interac-
tive process to determine what accommodation is reasonable (or

7
Fifth Circuit case law suggests agreement with this holding. See
Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999) (cited with
approval by Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224 (5th Cir.
2011)). (“[W]hen an employer’s unwillingness to engage in a good faith
interactive process leads to a failure to reasonably accommodate an em-
ployee, the employer violates the ADA.”).

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11.7 PATTERN JURY INSTRUCTIONS

may not, for example, if the accommodation is agreed and obvi-

ous), failing to engage in the interactive process is not actionable.
Failing to do so, however, could lead to failing to accommodate the
individual’s disability, which does violate the ADA.

J. Statutory Defenses

The ADA provides the following defenses: (1) undue hardship

(42 U.S.C. § 2112(b)(5)(A)); (2) direct threat to the health or safety
of others in the workplace (42 U.S.C. § 12113(b)); (3) a qualifica-
tion standard, test requirement, or selection criterion that is job-
related and consistent with business necessity (42 U.S.C.
§ 12113(a)); (4) religious entity (42 U.S.C. § 12113(d)(1)); (5) infec-
tious or communicable disease (42 U.S.C. § 12113(e)(2)); and (6) il-
legal use of drugs (42 U.S.C. § 12114(a)). The statutory defenses
most likely to lead to instruction issues are undue hardship and
direct threat. See Pattern Jury Instruction 11.12. The burden of
proving and pleading these defenses is on the defendant.

K. Procedures and Remedies

Under 42 U.S.C. § 12117, ADA cases generally follow the

procedures and remedy schemes from Title VII cases. See 42 U.S.C.
§ 12117 (2012). An EEOC charge and right-to-sue notice typically
will be necessary preconditions to an ADA claim. See 42 U.S.C.
§ 2000e-5. Damages under the ADA generally are the same as
those available under Title VII. Potential remedies in ADA cases
include back pay, compensatory damages, punitive damages, and
attorney’s fees. See 42 U.S.C. § 1981a.

The causation standard in ADA cases may be in flux. The stat-

ute precludes discrimination “because of” the employee’s disability.
Historically, the Fifth Circuit construed this language as allowing
a “motivating-factor” test. See, e.g., Pinkerton v. Spellings, 529
F.3d 513, 519 (5th Cir. 2008). But the United States Supreme
Court held in Gross v. FBL Financial Services, Inc., that the term
“because of” found in the AEDA requires “but-for” causation. 557
U.S. 167, 176-77 (2009). Since Gross, it appears that circuits
considering the issue have applied “but-for” causation to ADA
claims. See, e.g., Lewis v. Humboldt, 681 F.3d 312 (6th Cir. 2012)
(en banc); Palmquist v. Shinseki, 689 F.3d 66 (1st Cir. 2012);
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir.
2010). Some courts within the Fifth Circuit have likewise rejected
the mixed-motives standard in ADA cases. See, e.g., Johnson v.
Benton Cty. Sch. Dist., 926 F. Supp. 2d 899 (N.D. Miss. Feb. 25,
2013) (holding “the mixed-motive option is no longer available in
ADA cases post-Gross”).

In an unpublished opinion, the Fifth Circuit stated that the

182
EMPLOYMENT CLAIMS 11.7
ADEA and ADA adopt “different degree[s] of proof required for
showing causation.” Hoffman v. Baylor Health Care Sys., 597 F.
App’x 231, 253 & n.12 (5th Cir. 2015). “[T]he ADEA does not au-
thorize a mixed-motive[] claim of age discrimination, Gross v. FBL
Fin. Serv., Inc., 557 U.S. 167, 175 (2009), such that a plaintiff-
employee must show that age was the but-for cause of the alleged
age discrimination. Reed v. Neopost USA, Inc., 701 F.3d 434, 440
(5th Cir. 2012). In contrast, “[t]he proper causation standard under
the ADA is a ‘motivating factor’ test . . . [i.e.,] ‘discrimination
need not be the sole reason for the adverse employment decision.’ ’’
Id. at 253 n.12 (citing Pinkerton v. Spellings, 529 F.3d 513, 519
(5th Cir. 2008)). In Feist v. Louisiana Department of Justice, the
court examined an ADA retaliation claim and held, “In order to
avoid summary judgment, the plaintiff must show ‘a conflict in
substantial evidence’ on the question of whether the employer
would not have taken the action ‘but for’ the protected activity.”
730 F.3d 450, 454 (5th Cir. 2013) (citing Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (rejecting motivating-
factor test for Title VII retaliation cases)). The Fifth Circuit has
continued to reference motivating factor after Gross. See Maples v.
Univ. of Tex. Med. Branch at Galveston, 524 F. App’x. 93 (Table),
95 (5th Cir. 2013) (per curiam) (requiring proof that ADHD was a
“motivating factor” in dismissal) (citing Pinkerton, 529 F.3d at
519); Adeleke v. Dall. Area Rapid Transit, 487 F. App’x. 901, 903
(5th Cir. 2012) (holding that motivating factor applies to Title VII
and ADA). This has prompted some district courts in this circuit to
apply something short of the “but-for” standard. See, e.g., EEOC v.
DynMcDermott Petrol. Operations Co., No. 1:10cv510-TH, 2012 WL
506861, at *3 (E.D. Tex. Feb. 15, 2012), rev’d on other grounds, 537
F. App’x 437, 2013 WL 3855553 (5th Cir. July 26, 2013) (quoting
Pinkerton, 529 F.3d at 518).

The committee takes no position on this issue and has instead

provided options. The basic charge uses the statutory “because-of”
language and provides alternative “but-for” language. If a court
wishes to instruct on mixed motives, it may look to charges 11.1
(providing mixed-motives language) and 11.13 (addressing the
employer’s defense).

The employer may avoid an award of damages or reinstate-

ment by showing that it would have taken the same action in the
absence of the impermissible motivating factor. In such cases, the
remedies are limited to a declaratory judgment, an injunction that
does not include an order for reinstatement or for back pay, and
some attorney’s fees and costs. 42 U.S.C. § 2000e-5(g)(2)(B)(i) &
(ii).

In addition, the ADA provides a defense if an employer

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11.7 PATTERN JURY INSTRUCTIONS

“demonstrates good faith efforts” to find a reasonable accommoda-

tion for the plaintiff employee. See 42 U.S.C. § 1981a(a)(3) and
Pattern Jury Instruction 11.10. If the jury finds that the employer
has made such efforts, the plaintiff cannot recover compensatory
or punitive damages. See 42 U.S.C. § 1981a(a)(3).

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EMPLOYMENT CLAIMS 11.8
11.8 Discrimination Based on Disability1

A. Committee Notes

This charge is for use in ADA or Rehabilitation

2
Act cases in which the plaintiff alleges that the
defendant discriminated against him or her because of
an actual or perceived impairment or violated provi-
sions of those statutes other than the requirement to
provide a reasonable accommodation.3 The claims can
include failing to hire, failing to promote, firing, or
demoting the plaintiff.

This charge provides alternatives to be adapted to

present the claims and defenses of each case accurately
and clearly. “Because of” tracks the statute but does
not specify the causation standard. When the plaintiff
asserts a mixed-motive claim, the standard set out in
Pattern Jury Instruction 11.1 may be used.4

B. Charge for Cases Involving Actual Disability

Claims
1
This charge follows the Fifth Circuit Labor and Employment Pat-
tern Jury Charge, 11.7.1 and 11.7.2 (2009), with changes made to conform
to recent case law and the ADAAA. This charge may also be used if
disparate impact is asserted under 42 U.S.C. § 12112(b)(6).
2
Section 501 of the Rehabilitation Act of 1973, applicable to claims
by federal-sector employees, also includes an affirmative-action obligation
that is not present under § 504 of that Act or under the ADA. See 29
U.S.C. § 791(b). This charge does not address that affirmative-action
obligation. Section 501 also requires that federal employment be “free
from any discrimination” by incorporating that standard used in federal-
sector Title VII claims. 29 U.S.C. § 794a(a)(1); Prewitt v. U.S. Postal Serv.,
662 F.2d 292, 303 (5th Cir. 1981). It is not yet clear in the Fifth Circuit
whether this provides more protection in federal-sector cases than is pre-
sent under the ADA.
3
Failure to accommodate is covered in Pattern Jury Instruction 11.
10.
4
As noted previously, the causation standard for an ADA claim may
be in flux. See ADA and ADAAA Overview § K. The Committee has taken
no position on this issue and has instead provided options, including a
“because-of” standard; an alternative “but-for” standard; and cross-
references to the mixed-motives charges found in 11.1 and 11.13.

185
11.8 PATTERN JURY INSTRUCTIONS

Plaintiff [name] claims that Defendant [name]

discriminated against [him/her] because [he/she] had a
disability by [specify adverse employment action]. 5
Defendant [name] denies Plaintiff [name]’s claims and
contends that [he/she] was [specify adverse employ-
ment action] because of [specify contention].

It is unlawful for an employer to discriminate

against an employee because of the employee’s
disability. Unlawful discrimination can include [specify
adverse employment action] a qualified individual with
a disability.6

To succeed in this case, Plaintiff [name] must prove

each of the following by a preponderance of the evidence:

1. Plaintiff [name] had [specify alleged impair-

ment];

2. Such [specify alleged impairment] substantially

limited [his/her] ability to [specify major life
activity or activities or major bodily function or
functions affected];

3. Defendant [name] knew7 Plaintiff [name] had

[specify alleged disability];

4. Defendant [name] [specify adverse employment

action] Plaintiff [name];

5. Plaintiff [name] was a qualified individual who

could have performed the essential functions of
5
If there is no factual dispute about whether the plaintiff experienced
an adverse employment action, specifying the action at issue is usually
sufficient. If there is a factual dispute, the charge can be modified using
the definition of “tangible employment action” in Pattern Jury Instruction
11.1.
6
42 U.S.C. § 12112.
7
This language may need to be modified if there is a factual dispute
about whether the defendant knew about the disability or had information
that revealed the plaintiff’s disability.

186
EMPLOYMENT CLAIMS 11.8
[specify job held or position sought] when
Defendant [name] [specify adverse employment
action] [him/her];8 and

6. Defendant [name] [specify adverse employment

action] Plaintiff [name] because of [his/her]
[specify alleged disability].9 Plaintiff [name]
does not have to prove that [his/her] [specify al-
leged disability] was the only reason Defendant
[name] [specify adverse employment action].

If Plaintiff [name] has failed to prove any of these

8
The definition of “qualified individual” under 42 U.S.C. § 12111(8) is
set out in the introduction to this section. There is often no dispute on
whether the plaintiff is a qualified individual able to perform the job’s es-
sential functions. If there is a dispute, the following could be included in
the charge:
In determining whether a function is essential, you should consider
the following factors: the employer’s judgment as to which functions
are essential; written job descriptions; the amount of time spent on
the job performing the function; the consequences of not requiring
the person to perform the function; the terms of any collective
bargaining agreement; the work experience of persons who have
held the job; the current work experience of persons in similar jobs;
whether the reason the position exists is to perform the function;
whether there are a limited number of employees available among
whom the function is to be distributed; whether the function is highly
specialized and the individual in the position was hired for [his/her]
expertise or ability to perform the function; and [list other relevant
factors supported by the evidence]. You may also consider other
factors.
29 C.F.R. § 1630.2(n).
9
As noted previously, the causation standard for an ADA claim may
be in flux. See ADA and ADAAA Overview § K. The Committee has taken
no position on this issue and has instead provided options, including a
“because-of” standard; an alternative “but-for” standard; and cross-
references to the mixed-motives charges found in 11.1 and 11.13.
If the law develops to make the use of but-for causation clear, the
following instruction may be used:
6. Defendant [name] would not have [specify adverse employment
action other than failure to accommodate] [him/her] but for Plaintiff
[name]’s [specify alleged disability]. It is not necessary that Plaintiff
[name]’s disability be the only reason for Defendant [name]’s deci-
sion to [specify adverse employment action]. But you must find that
that Defendant would not have made the decision in the absence of
the Plaintiff [name]’s [specify alleged disability].

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11.8 PATTERN JURY INSTRUCTIONS

elements, then your verdict must be for Defendant

[name].

A “disability” is a [physical] [mental] impairment

that substantially limits one or more major life
activities. In determining whether Plaintiff [name]’s
[specify alleged impairment] substantially limits [his/
her] ability to [specify major life activity affected], you
should compare [his/her] ability to [specify major life
activity affected] with that of the average person. In do-
ing so, you should also consider: (1) the nature and se-
verity of the impairment; (2) how long the impairment
will last or is expected to last; and (3) the permanent or
long-term impact, or expected impact, of the
impairment.10 [Temporary impairments with little or no
long-term impact are not sufficient.]11

In determining whether an impairment substan-

tially limits a major life activity, you must consider the
impairment without regard to the effects 12 of such
measures as medication,13 therapies,14 or surgery. In do-
ing so, you may consider evidence of the expected course
of a particular disorder without medication, therapies,
or surgery.15

(If the case involves a claim of impairments

that are not obvious, such as a mental or psycho-
logical disorder, and there is a factual dispute
10
This instruction should be given when the plaintiff alleges an actual
impairment and there is a factual dispute about whether it is a disability.
An impairment is a disability under the ADA only if it substantially limits
one or more major life activities. See 42 U.S.C. § 12102(1).
11
This language should be used only if supported by the evidence.
12
42 U.S.C. § 12102(4)(E)(i); 29 C.F.R. § 1630.2(j)(1)(vi).
13
42 U.S.C. § 12102(4)(E)(i)(1).
14
29 C.F.R. § 1630.2(j)(5)(v) (psychotherapy, behavioral therapy, and
physical therapy); 29 C.F.R. Part 1630 App. § 1630.2(j)(1)(v), 76 Fed. Reg.
16978, 17010 (Mar. 25, 2011)76 Fed. Reg. 16978, 17009 (Mar. 25, 2011)
(“therapies”).
15
29 C.F.R. Part 1630 App. § 1630.2(j)(1)(vi), 76 Fed. Reg. 16978,
17010 (Mar. 25, 2011).

188
EMPLOYMENT CLAIMS 11.8
about the employer’s knowledge) To prove that
Plaintiff [name]’s disability was the reason for the
[specify adverse employment action], Plaintiff [name]
must prove that the individuals at Defendant [name]
who made the decision to [specify adverse employment
action] knew of [his/her] disability. You may consider
evidence about information learned from communica-
tions with Plaintiff [name]. In addition, an employer is
presumed to know information in its files or records
about its employees. But an employer is not presumed
to know information in records that are not in its files.
Nor is an employer required to draw conclusions that
an individual has a mental or psychological disorder if
it is not obvious to an ordinary person.

C. Charge for Cases Involving Claims of Dis-

crimination Based on Having a Record of
Impairment or Being Regarded as Having An
Impairment

Plaintiff [name] claims that [he/she] was discrimi-

nated against because [[he/she] had a record of a dis-
ability] [Defendant [name] regarded [him/her] as hav-
ing an impairment]. Defendant [name] denies Plaintiff
[name]’s claims and contends that [he/she] was [specify
adverse employment action] because of [specify
contentions].16

Plaintiff [name] claims that [he/she] could have

performed the essential functions of [specify job held or
position sought] when Defendant [name] [specify
adverse employment action] Plaintiff [name].

It is unlawful to [specify adverse employment ac-

tion] a qualified individual who [has a record of a dis-
16
This language may be used if there is no factual dispute about
whether the plaintiff experienced an adverse employment action. If there
is a dispute, the language may be modified using the definition of “tangible
employment action” at Pattern Jury Instruction 11.1.

189
11.8 PATTERN JURY INSTRUCTIONS

ability] [is regarded as having an impairment] because17

the qualified individual

[has a record of a disability] [is regarded as having

an impairment].18

To succeed in this case, Plaintiff [name] must prove

the following by a preponderance of the evidence:

1. Plaintiff [name] could have performed the es-

sential functions of [specify job held or position
sought] when Defendant [name] [specify ad-
verse employment action] [him/her];

2. Plaintiff [name] [had a record of a [physical]

[mental] impairment that substantially limited
one or more major life activities] [was regarded
as having a [physical] [mental] impairment];

3. Defendant [name] [knew19 that Plaintiff [name]

had a record of a disability] [regarded Plaintiff
[name] as having an impairment];

4. Defendant [name] [specify adverse employment

action] Plaintiff [name]; and

5. Defendant [name] [specify adverse employment

17
As noted previously, the causation standard for an ADA claim may
be in flux. See ADA and ADAAA Overview § K. See also Reed v. Neopost
USA, Inc., 701 F.3d at 440 (under the ADA, “discrimination need not be
the sole reason for the adverse employment decision”). The committee has
taken no position on this issue and has instead provided options, includ-
ing a “because-of” standard; an alternative “but-for” standard; and cross-
references to the mixed-motives charges found in 11.1 and 11.13.
The following mixed-motive instruction may be used for a § 2(m)
case: Defendant [name]’s [specify adverse employment action] of Plaintiff
[name] was motivated by [his/her] [protected trait]. Plaintiff [name] does
not have to prove that unlawful discrimination was the only reason
Defendant [name] [specify adverse employment action] [him/her].
18
42 U.S.C. § 12112.
19
This language may need to be modified if there is a factual dispute
about whether the defendant knew or had information that would have
provided knowledge about the plaintiff’s impairment or disability.

190
EMPLOYMENT CLAIMS 11.8
action] Plaintiff [name] because [[he/she] [had
a record of] [specify disability]] [was regarded
as having [specify impairment]].

[An individual has a record of having a disability if

[he/she] has a history of or has been classified as hav-
ing an impairment that substantially limits one or more
major life activities.]

[An individual is regarded as having an impair-

ment if the individual establishes that [he/she] has been
subjected to discrimination because of an actual or
perceived impairment, whether or not it limits or is
perceived to limit a major life activity.]

If Plaintiff [name] has failed to prove any of these

elements, then your verdict must be for Defendant
[name].

191
11.8 PATTERN JURY INSTRUCTIONS

11.8 Pattern Jury Question, Discrimination

Based on Disability

JURY QUESTIONS

Question No. 1

Has Plaintiff [name] proved that Defendant [name]

[specify adverse employment action] Plaintiff [name]
because of [his/her] [[having a record of] [specify dis-
ability]] [[being regarded as having] [specify impair-
ment]]?1

1
If there are factual disputes about whether the plaintiff had a dis-
ability or an impairment as alleged, had a record of a disability, or was
regarded as having a disability; whether he or she was a qualified individ-
ual; or whether he or she experienced the claimed tangible employment
action, the following questions could be used:
Question No. 1
[Did Plaintiff [name] have a [disability] [a record of a disability]] [Was
Plaintiff [name] regarded as having a disability]?
Answer “Yes” or “No.”
———————————
If you answered “Yes,” then answer Question No. 2.

Question No. 2
Was Plaintiff [name] a “qualified individual?”
Answer “Yes” or “No.”
———————————
If you answered “Yes,” then answer Question No. 3.

Question No. 3
Did Plaintiff [name] experience [specify the alleged adverse employment
action]?
Answer “Yes” or “No.”
———————————
Question No. 4
Was [specify disputed action] an adverse employment action?
Answer “Yes” or “No.”
———————————

192
EMPLOYMENT CLAIMS 11.9
11.9 Harassment Based on Disability (Hostile
Work Environment—Negligence)1

A. Committee Notes
1
In Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 235–36
(5th Cir. 2001), the Fifth Circuit recognized a cause of action under the
ADA for disability harassment. Recent case law in related contexts
indicates that Flowers remains good law. See, e.g., Carder v. Cont’l Airlines,
636 F.3d 172, 178 (5th Cir. 2011) (citing Flowers in explaining why the
Uniformed Services Employment and Reemployment Act does not create a
cause of action based on hostile work environment, as the ADA and Title
VII do). But see Bennett v. Dallas Indep. Sch. Dist., 936 F. Supp. 2d 767,
789 (N.D. Tex. 2013) (discussing Carder and positing that in November of
2011, Congress amended part of the USERRA and that it might now
include a cause of action based on hostile work environment). Although
tried shortly after Faragher and Ellerth were decided, Flowers appears to
have been tried solely under a negligence theory. The Fifth Circuit’s deci-
sion addresses only the negligence theory of disability harassment. In
Credeur v. La. Through Office of Att’y Gen., 860 F.3d 785 (5th Cir. 2017),
the Fifth Circuit reassured that a plaintiff may bring a disability-based
harassment claim under the ADA. 860 F.3d at 796. The Court quoted
Flowers, stating:
To establish a prima facie case of disability-based harassment, a
plaintiff must demonstrate: (1) that she belongs to a protected group;
(2) that she was subjected to unwelcome harassment; (3) that the
harassment complained of was based on her disability or disabilities;
(4) that the harassment complained of affected a term, condition, or
privilege of employment; and (5) that the employer knew or should
have known of the harassment and failed to take prompt remedial
action. Flowers, 247 F.3d at 235–36. Further, the “harassment must
be sufficiently pervasive or severe to alter the conditions of employ-
ment and create an abusive working environment.’’ Id. at 236. In
determining whether a work environment is abusive, we consider
the entirety of the evidence in the record, 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.” Id. (quoting Shepherd v. Comptroller of Public Ac-
counts, 168 F.3d 871, 874 (5th Cir. 1999)).
Credeur held that criticism of an employee’s work performance, and even
threats of termination, do not satisfy the standard for a harassment claim.
Id. (citing Kumar v. Shinseki, 495 F. App’x 541, 543 (5th Cir. 2012)).
Credeur does not change Flowers. In another recent opinion, Patton v.
Jacobs Engineering Grp., Inc., 874 F.3d 437 (5th Cir. 2017), the Fifth
Circuit cited, but did not analyze, the elements of Flowers, because the
plaintiff had forfeited his challenge to the district court’s findings that
“the plaintiff did not show that the defendant knew or should have known
of the harassment and failed to take prompt remedial action.” Neither
Credeur nor Patton explained the meaning of “based on” in the third
element.

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11.9 PATTERN JURY INSTRUCTIONS

This charge is for cases in which liability for

harassment based on disability is alleged under a
negligence theory. There is little case law on this cause
of action. These instructions rely heavily on the Fifth
Circuit’s leading case on this subject, Flowers v. South
Regional Physician Services., Inc.2

B. Charge

Plaintiff [name] claims that [he/she] was harassed

by [harasser’s name] based on [his/her] [specify
disability].3

Defendant [name] denies Plaintiff [name]’s claims

and contends that [specify contentions].

It is unlawful for an employer to discriminate

against an employee because of the employee’s
disability. Unlawful discrimination can include
harassment.

For Defendant [name] to be liable for harassment

based on a disability, Plaintiff [name] must prove by a
preponderance of the evidence that [harasser’s name]
engaged in harassment based on Plaintiff [name]’s dis-
ability and:

1. the conduct was sufficiently severe or pervasive

to:
2
Flowers, 247 F.3d at 235–36; see also Gowesky v. Singing River
Hosp. Sys., 321 F.3d 503, 509–11 (5th Cir. 2003).
3
The case law uses “was based on” to state the causation standard
for disability-harassment claims. See, e.g., Gowesky, 321 F.3d at 509. The
mixed-motive alternative is rarely asserted in such cases. If but-for causa-
tion is asserted, or if the cases make clear that the but-for causation stan-
dard is correct, the charge may be modified as follows:
. . . [he/she] would not have been harassed by [harasser] but for
[specify disability].

194
EMPLOYMENT CLAIMS 11.9
a. alter the terms or conditions of Plaintiff
[name]’s employment; and

b. create a hostile or abusive work environ-

ment;4 and

2. Defendant [name] knew, or in the exercise of

reasonable care should have known, that Plain-
tiff [name] was being harassed based on [his/
her] disability. To make this showing, Plaintiff
[name] must prove that:

a. the harassment was known by or com-

municated to a person who had the author-
ity to receive, address, or report the com-
plaint, even if that person did not do so;5 or

b. the harassment was so open and obvious

that Defendant [name] should have known
of it;6 and

c. Defendant [name] failed to take prompt re-

medial action designed to stop the
harassment.7

To determine whether the conduct in this case rises

to a level that alters the terms or conditions of Plaintiff
[name]’s employment, you should consider all the cir-
cumstances, including the frequency of the conduct; its
severity; whether it is physically threatening or
humiliating or a mere offensive utterance; and whether
4
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66–67 (1986).
5
Williamson v. City of Hous., 148 F.3d 462, 466–67 (5th Cir. 1998).
6
Sharp v. City of Hous., 164 F.3d 923, 930 (5th Cir. 1999).
7
Flowers, 247 F.3d at 235–36; Meritor, 477 U.S. at 66–67.

195
11.9 PATTERN JURY INSTRUCTIONS

it unreasonably interferes with Plaintiff [name]’s work

performance.8

In determining whether a hostile work environ-

ment existed, you must consider the evidence from both
Plaintiff [name]’s perspective and from the perspective
of a reasonable person. First, you must look at whether
Plaintiff [name] actually found the conduct offensive.
Next, you must look at the evidence from the perspec-
tive of a reasonable person’s reaction to a similar
environment under similar circumstances. You cannot
view the evidence from the perspective of an overly
sensitive person, nor can you view the evidence from
the perspective of someone who is never offended.
Rather, the alleged harassing behavior must be such
that a reasonable person in the same or similar circum-
stances as Plaintiff [name] would find the conduct
offensive.9

If Plaintiff [name] proves [he/she] was harassed

because of [his/her] [specify disability], then you must
decide whether Defendant [name] is liable. Plaintiff
[name] must prove that Defendant [name]: (a) either
knew of the harassment or in the exercise of reasonable
care should have known of the harassment; and (b)
failed to take prompt remedial action.10

In determining whether Defendant [name] knew or

should have known of the harassment, Plaintiff [name]
must prove that: (a) the harassment was known or com-
municated to a person who had the authority to receive,
address, or report the complaint, even if that person
8
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Flowers, 247
F.3d at 236.
9
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
10
Shepherd v. Comptroller of Pub. Accounts of Tex., 168 F.3d 871, 873
(5th Cir. 1999); Williamson, 148 F.3d at 464–66.

196
EMPLOYMENT CLAIMS 11.9
did not do so;11 or (b) the harassment was so open and
obvious that Defendant [name] should have known of
it.12

Prompt remedial action is conduct by the employer

that is reasonably calculated to stop the harassment
and remedy the situation. Whether Defendant [name]’s
actions were prompt and remedial depends on the facts.
You may consider, among other things, the effective-
ness of any actions taken.13

11
Williamson, 148 F.3d at 466–67.
12
Sharp, 164 F.3d at 930.
13
See Waltman v. Int’l Paper Co., 875 F.2d 468, 479 (5th Cir. 1989).

197
11.9 PATTERN JURY INSTRUCTIONS

11.9 Pattern Jury Questions, Harassment Based

on Disability (Hostile Work Environment—
Negligence)

JURY QUESTIONS

Question No. 1

Was Plaintiff [name] harassed based on [his/her]

[specify disability]?1

Answer “Yes” or “No.”

———————————

If you answered “Yes” to Question No. 1, then

answer Question No. 2.

Question No. 2

Did Defendant [name] know, or in the exercise of

reasonable care should Defendant [name] have known,
that Plaintiff [name] was being harassed based on [his/
her] [specify disability]?

Answer “Yes” or “No.”

———————————

If you answered “Yes” to Question No. 2, then

answer Question No. 3.
1
The cases use the “based on” language to submit disability-
harassment claims. If the case law becomes clear that pretext is used, the
question can be modified to ask: “Would Plaintiff [name] have been ha-
rassed but for [specify disability]?”

198
EMPLOYMENT CLAIMS 11.9

Question No. 3

Did Defendant [name] fail to take prompt remedial

action?

Answer “Yes” or “No.”

———————————

199
11.10 PATTERN JURY INSTRUCTIONS

11.10 Failure to Accommodate a Disability

A. Committee Notes

This charge is for cases in which the plaintiff al-

leges that the defendant failed to make a reasonable
accommodation for the plaintiff’s disability that would
have permitted the plaintiff to perform the essential
functions of his or her job.1

B. Charge

Plaintiff [name] claims that Defendant [name]

failed to reasonably accommodate Plaintiff [name]’s
disability.

Defendant [name] denies Plaintiff [name]’s claims

and contends [specify contentions].

The law requires an employer to make reasonable

accommodations for an [employee’s] [applicant’s]
disability.

To succeed in this case, Plaintiff [name] must prove

each of the following by a preponderance of the evidence:

1. Plaintiff [name] could have performed the es-

sential functions of the [specify job held or posi-
tion sought] when Defendant [name] [specify
adverse employment action] if Plaintiff [name]
had been provided with [specify accommoda-
tion identified by plaintiff];
1
In Feist v. State of La., Dept. of Justice, 730 F.3d 450 (5th Cir. 2013),
the Fifth Circuit clarified that failure-to-accommodate claims are not
limited to accommodations that would have allowed the plaintiff to
perform his or her essential job functions. Such claims may also be brought
based on the failure to make accommodations that would have enabled a
plaintiff who is a qualified applicant with a disability to be considered for
the position that he or she desired and that would have him or her to have
benefits and privileges of employment available to similarly situated em-
ployees without disabilities. See Feist, 730 F.3d at 453; 29 C.F.R.
§ 1630.2(o)(1).

200
EMPLOYMENT CLAIMS 11.10
2. Plaintiff [name] had [specify impairment];

3. Such [specify impairment] substantially limited

Plaintiff [name]’s ability to [specify major life
activity or activities affected];2

4. Defendant [name] knew of Plaintiff [name]’s

[specify impairment];

5. Plaintiff [name] requested an accommodation;3

6. Providing [an] accommodation would have been

reasonable; and

7. Defendant [name] failed to provide a reason-

able accommodation.4

A “disability” is a [physical] [mental] impairment5

that substantially limits one or more major life
activities.6 In determining whether Plaintiff [name]’s
2
This was modified from the 2009 Fifth Circuit Pattern Instruction
to remove the reference to regarded-as disability, which is addressed in
the separate instructions above.
3
There are circumstances when an employer is deemed to be on
notice. See, e.g., Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735–36 nn.4–5
(5th Cir. 1999). Accordingly, there may be cases for which this element
should be omitted or modified.
4
An employer is not required to provide an employee the accom-
modation he or she requests or prefers. Griffin, 661 F.3d at 224. The
employer need only provide some reasonable accommodation. E.E.O.C. v.
Agro Distrib., 555 F.3d 462, 471 (5th Cir. 2009); 29 C.F.R. pt. 1630.9 App.,
§ 1630.9.
5
“Physical impairment” is defined at 29 C.F.R. § 1630.2(h) and in
Pattern Jury Instruction 11.8. The charge should only include those por-
tions relevant to the specific allegations and evidence. If there is no dispute
that the plaintiff’s condition constituted an impairment, or the court finds
an impairment as a matter of law, the court may instruct the jury that
“the Plaintiff’s [identify condition] is a [physical/mental] impairment.”
6
“Major life activities” are defined at 42 U.S.C. § 12102(2); 29 C.F.R.
§ 1630.2(i)(1) and in Pattern Jury Instruction 11.8. The charge should
include only what is relevant to the specific allegations and evidence. If
there is no dispute that the plaintiff’s impairment was a disability, or if
the court finds a disability as a matter of law, the jury may be instructed
accordingly.

201
11.10 PATTERN JURY INSTRUCTIONS

impairment substantially limits [his/her] ability to

[specify major life activity affected], you should compare
[his/her] ability to [specify major life activity affected]
with that of the average person. In doing so, you should
also consider: (1) the nature and severity of the impair-
ment; (2) how long the impairment will last or is
expected to last; and (3) the permanent or long-term
impact, or expected impact, of the impairment. [Tempo-
rary impairments with little or no long-term impact are
not sufficient.7]

In determining whether an impairment substan-

tially limits a major life activity, you must consider the
impairment without regard to the effects 8 of such
measures as medication,9 therapies,10 or surgery. In do-
ing so, you may consider evidence of the expected course
of a particular disorder without medication, therapies,
or surgery.11

If an impairment is episodic or in remission, it is

still a “disability” if it substantially limited a major life
activity when it was active or if it would substantially
limit a major life activity when active.12
7
This language should be used only if supported by the evidence.
8
42 U.S.C. § 12102(4)(E)(i); 29 C.F.R. § 1630.2(j)(1)(vi).
9
42 U.S.C. § 12102(4)(E)(i)(1).
10
29 C.F.R. § 1630.2(j)(5)(v) (psychotherapy, behavioral therapy, and
physical therapy); 29 C.F.R. Part 1630 App. § 1630.2(j)(1)(v), 76 Fed. Reg.
16978, 17010 (Mar. 25, 2011)76 Fed. Reg. 16978, 17009 (Mar. 25, 2011)
(“therapies”).
11
29 C.F.R. Part 1630 App. § 1630.2(j)(1)(vi), 76 Fed. Reg. 16978,
17010 (Mar. 25, 2011).
12
42 U.S.C. § 12102(4)(D); 29 C.F.R. § 1630.2(j)(1)(vii). Some types of
impairments will often result in a finding that they substantially limit a
major life activity. Such impairments include deafness, blindness, an
intellectual disability like mental retardation, a partially or completely
missing limb, a mobility impairment requiring the use of a wheelchair,
cancer, cerebral palsy, diabetes, epilepsy, Human Immunodeficiency Virus
(HIV), multiple sclerosis, muscular dystrophy, major depressive disorder,
bipolar disorder, posttraumatic stress disorder, obsessive compulsive dis-
order, or schizophrenia.

202
EMPLOYMENT CLAIMS 11.10
A “qualified individual” 1 3 is one who, with or
without reasonable accommodations, can perform the
essential functions of the job.14 The term “essential func-
tions” means the fundamental job duties of the employ-
ment position a plaintiff [holds/held] or for which [he/
she] has applied. The term does not include the
marginal functions of the position.

In determining whether a job function is essential,

you should consider the following factors: the employer’s
judgment as to which functions are essential; written
job descriptions; the amount of time spent on the job
performing the function; the consequences of not requir-
ing the person to perform the function; the terms of a
collective bargaining agreement; the work experience of
persons who have held the job; the current work experi-
ence of persons in similar jobs; whether the reason the
position exists is to perform the function; whether there
are a limited number of employees available among
whom the performance of the function is to be distrib-
uted; whether the function is highly specialized and the
individual in the position was hired for [his/her]
expertise or ability to perform the function; and [list
other relevant factors supported by the evidence]. You
may also consider other factors.15

The term “accommodation” means making modifica-

tions to the work place that allow a person with a dis-
ability to perform the essential functions of the job, to
attain the level of performance available to similarly
situated employees who are not disabled, or to enjoy
equal benefits and privileges of employment as are
13
“Qualified” also means “that the individual satisfies the requisite
skill, experience, education, and other job-related requirements of the
employment position the individual holds or desires.” 29 C.F.R. § 1630.2(n).
There is often no dispute about this part of the definition. If there is a
dispute, this language should be included in the instruction.
14
42 U.S.C. § 12111(8).
15
29 C.F.R. § 1630.2(n).

203
11.10 PATTERN JURY INSTRUCTIONS

enjoyed by similarly situated employees who are not

disabled.16

A “reasonable” accommodation is one that could

reasonably be made under the circumstances. It may
include, but is not limited to: (a) making existing facili-
ties used by employees readily accessible to and usable
by individuals with disabilities; or (b) job restructuring,
part-time or modified work schedules, reassignment to
a vacant position, acquisition or modification of equip-
ment or devices, appropriate adjustment or modifica-
tions of examinations, training materials, or policies,
the provision of qualified readers or interpreters and
other similar accommodations for individuals with
16
29 C.F.R. § 1630.2(o)(1); see also Feist, 730 F.3d at 453 (holding that
an accommodation need not enable the performance of the individual’s es-
sential job functions to be a reasonable accommodation under the ADA).

204
EMPLOYMENT CLAIMS 11.10
disabilities.17 There may be other reasonable
accommodations.18

Defendant [name] claims that Plaintiff [name]’s

requested accommodation would have imposed an
undue hardship on Defendant [name].19 An employer
need not provide an accommodation to the known limi-
tations of a qualified employee or applicant if the
employer proves that the accommodation would impose
an undue hardship on its business operations. The
employer has the burden of proving by a preponderance
of the evidence that the accommodation would have
imposed an undue hardship.

An “undue hardship” is an action requiring the

17
Although part-time work and job restructuring may be reasonable
accommodations, an employer is not required to offer these accommoda-
tions in every case. An employer is not required to restructure a job if that
would reallocate the job’s essential functions. An employer is not obligated
to hire additional employees or reassign existing workers to assist an em-
ployee with a disability. The ADA does not require an accommodation that
would cause other employees to work harder, work longer hours, or lose
opportunities. See Toronka v. Cont’l Airlines, 411 F. App’x. 719, 724 (5th
Cir. 2011); Burch v. City of Nacogdoches, 174 F.3d 615, 621–22 (5th Cir.
1999).
Reassignment to a vacant position may be a reasonable accom-
modation, but the employer is not required to create a new position as an
accommodation. See Toronka, 411 F. App’x at 725. An employee seeking
reassignment as an accommodation must be “otherwise qualified” for the
reassignment position. See Toronka, 411 F. App’x at 726. The ADA does
not require preferential treatment of individuals with disabilities in terms
of job qualifications as a reasonable accommodation. See Toronka, 411 F.
App’x at 725. An employer with an established policy of filling vacant posi-
tions with the most qualified applicant is not required to assign a vacant
position to an employee with a disability who, although qualified, is not
the most qualified applicant. See Toronka, 411 F. App’x at 725. An employer
is not required to “bump” another employee to reassign a disabled position
to that position. See Toronka, 411 F. App’x at 726 n.7 (citing Foreman v.
Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997)). Promotion is not
a required accommodation. Toronka, 411 F. App’x at 726 n.7.
18
An employer is not obligated to provide an employee the accom-
modation he or she requests or prefers. Griffin, 661 F.3d at 224. The
employer need only provide some reasonable accommodation. Agro Distrib.,
555 F.3d at 471.
19
This is a defense on which the defendant has the burden of proof.
Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 682 (5th Cir. 1996).

205
11.10 PATTERN JURY INSTRUCTIONS

employer to incur significant difficulty or expense. Fac-

tors to be considered in determining whether the
[specify accommodation] would cause an undue hard-
ship include: (a) the nature and cost of the accommoda-
tion; (b) the overall financial resources of [the facility]
involved in the accommodation, the number of persons
employed there, the effect on expenses and resources,
or the impact otherwise on [the facility’s] operation; (c)
the overall financial resources of the employer, the over-
all size of the business with respect to the number of
employees, and the number, type, and location of its fa-
cilities; and (d) the type of operation of the employer,
including the composition, structure, and functions of
the workforce, the impact of the [specify accommoda-
tion] on [the facility’s operation], including the impact
on the ability of other employees to perform their
duties, and [list other relevant factors supported by the
evidence].20

20
42 U.S.C.A. § 1211(10)(B). This instruction should be modified to
include only those factors supported by the evidence.

206
EMPLOYMENT CLAIMS 11.10
11.10 Pattern Jury Question, Failure to
Accommodate Disability

JURY QUESTION

Question No. 1

Did Defendant [name] fail to reasonably accom-

modate Plaintiff [name]’s disability?

Answer “Yes” or “No.”

1
———————————

1
Other questions may be appropriate where other elements are
disputed.

207
11.11 PATTERN JURY INSTRUCTIONS

11.11 ADA—Retaliation

A. Committee Notes

A plaintiff may also allege that he or she suffered

an adverse employment action in retaliation for engag-
ing in an activity protected by the ADA. See, e.g., Seaman
v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999); see
also Pattern Jury Instruction 11.5. (Title VII—
Retaliation). A Title VII retaliation claim requires but-
for causation. Univ. of Tex. Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533 (2013). After Nassar, the Fifth
Circuit in Feist held that retaliation claims under the
ADA also require but-for causation. Feist v. La., Dep’t
of Justice, 730 F.3d 450, 454 (5th Cir. 2013) (citing Sea-
man, 179 F.3d at 301 (“If such a reason is advanced,
the plaintiff must adduce sufficient evidence that the
proffered reason is a pretext for retaliation. Ultimately,
the employee must show that ‘but for’ the protected
activity, the adverse employment action would not have
occurred.”)).

B. Charge

Plaintiff [name] claims that Defendant [name]

retaliated against [him/her] because [he/she] took steps
to enforce [his/her] lawful rights under federal law
prohibiting discrimination based on disability in the
workplace.

The law that prohibits discrimination in the

workplace also prohibits an employer from retaliating
against an employee because that employee has as-
serted rights or made complaints under that law.

Plaintiff [name] claims that Defendant [name]

[specify adverse employment action] because Plaintiff
[name] [specify protected activity].

Defendant [name] denies Plaintiff [name]’s claim

and asserts that [specify contentions].
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EMPLOYMENT CLAIMS 11.11
To succeed on [his/her] claim, Plaintiff [name] must
prove each of the following facts by a preponderance of
the evidence:

1. Plaintiff [name] engaged in protected activity;

2. Defendant [name] [specify adverse employment

action] Plaintiff [name];

3. Defendant [name] [specify adverse employment

action] Plaintiff [name] on account of [his/her]
engaging in protected activity.1

You need not find that the only reason for Defen-
dant [name]’s decision was Plaintiff [name]’s protected
activity. But you must find that Defendant [name]’s de-
cision to [specify adverse action] Plaintiff [name] would
not have occurred in the absence of—but for—[his/her]
protected activity.

1
The charge and jury question will need to be adjusted if there is a
factual dispute as to whether the plaintiff suffered an adverse employ-
ment action or whether he or she engaged in protected activity. The defini-
tions of “adverse employment action” and of “protected activity” in Pattern
Jury Instruction 11.5 may be used.

209
11.11 PATTERN JURY INSTRUCTIONS

11.11 Pattern Jury Question, ADA—Retaliation

JURY QUESTION

Question No. 1

Has Plaintiff [name] proved that [he/she] would not

have been [specify adverse employment action] but for
[his/her] [specify protected activity]?

Answer “Yes” or “No.”

———————————

210
EMPLOYMENT CLAIMS 11.12
11.12 Defenses to ADA Claim: Business
Necessity, Direct Threat, or Transitory
and Minor Condition1

A. Committee Notes

This charge is for cases in which the defendant

claims its actions were job-related and consistent with
business necessity, its actions were justified by the
direct-threat affirmative defense, or that the plaintiff is
not covered by the statute because the disability is
transitory and minor. The business-necessity defense
applies if the challenged employment action results
from applying an across-the-board rule that disquali-
fied the plaintiff.2 The direct-threat defense applies
when the defendant asserts that the plaintiff would
have posed a direct threat to the health or safety of the
plaintiff or others in the position held or sought as op-
posed to an exclusion based on an across-the board rule.3
The transitory-and-minor defense is asserted when the
defendant claims that the statute does not apply to a
plaintiff alleging a claim under the regarded-as prong
because his or her condition did not or will not last
more than six months and is minor in nature. The
defense that a disability was minor in nature may also
1
These are defenses on which the defendant has the burden of proof.
See Rizzo v. Children’s World Learning Ctrs., Inc., 213 F.3d 209, 213, 219
(5th Cir. 2000) (en banc); 29 C.F.R. § 1630.15.
2
EEOC v. Exxon Corp., 203 F.3d 871, 875 (5th Cir. 2000).
3
42 U.S.C. § 12113(a) (describing defenses and terms); 29 C.F.R.
§ 1630.15(c) (1999) (describing the four elements a defendant must prove
to sustain burden). The Fifth Circuit has held that this defense applies
when the employer asserts that the plaintiff as an individual poses a
safety risk. Exxon Corp., 203 F.3d at 875. On the other hand, if the chal-
lenged employment action results from applying an across-the-board rule
that disqualifies the plaintiff and others in the same category, the
business-necessity defense, not the direct-threat defense, applies.

211
11.12 PATTERN JURY INSTRUCTIONS

be asserted when a plaintiff alleges a claim under the

actual-disability or record-of-a-disability theories.4

B. Charge for Business-Necessity Defense

If you find that Defendant [name] [specify adverse

employment action] Plaintiff [name] because of Plaintiff
[name]’s [specify disability], then you must find for
Plaintiff [name] unless Defendant [name] proves by a
preponderance of the evidence that [specify applicable
employment standard] was a business necessity. Busi-
ness necessity is a defense to certain discrimination
claims under the ADA.

To establish this defense, Defendant5 [name] must

prove by a preponderance of the evidence that its ap-
plication of qualification standards, tests, selection
criteria, or policies that have [the effect of screening out
or otherwise denying a job or benefit to individuals with
[specify disability]] [have a disparate impact on indi-
viduals with [specify disability]], was:

1. uniformly applied;

2. job-related for the position in question;

3. consistent with business necessity; and

4. cannot be met by a person with [specify disabil-

ity] even with a reasonable accommodation.6

C. Charge for Direct-Threat Defense

4
The transitory part of the transitory-and-minor defense applies only
to claims under the regarded-as prong. It does not apply to the definition
of disability under the actual-disability or record-of-disability prongs,
under which the effects of an impairment lasting less than six months can
be substantially limiting. 29 C.F.R. § 1630.2(j)(1)(ix).
5
Business necessity is a defense on which the defendant has the
burden of proof. Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 682 (5th Cir.
1996).
6
See Atkins v. Salazar, 677 F.3d 667, 681–82 (5th Cir. 2011).

212
EMPLOYMENT CLAIMS 11.12
If you find that Defendant [name] [specify adverse
employment action] Plaintiff [name] because of Plaintiff
[name]’s [specify disability], then you must find for
Plaintiff [name] unless Defendant [name] proves by a
preponderance of the evidence that Plaintiff [name]’s
[employment] [continued employment] [posed] [would
have posed] a direct threat to the health or safety of
Plaintiff [name] or others in the workplace.

A direct threat means a significant risk of substan-

tial harm to the health or safety of Plaintiff [name] or
others in the workplace that could not be eliminated or
reduced by a reasonable accommodation.7

To prove that Plaintiff [name] posed a direct threat,

Defendant [name] must prove that it performed an
individualized assessment of Plaintiff [name]’s present
ability8 to safely perform the essential functions of the
job.9

In determining whether Plaintiff [name] posed a

direct threat, you should consider: (i) how long the risk
will last; (ii) the nature and severity of the potential
harm; (iii) how likely it is that the harm will occur; and
(iv) the likely time before the potential harm occurs.10
Defendant [name] must also prove that no reasonable
accommodation could be made that would eliminate or
reduce the risk so that it was no longer a significant
risk of substantial harm.11
7
29 C.F.R. § 1630.2(r).
8
In most cases, the timing of the assessment is not an issue. If that
is disputed, the assessment generally measure the plaintiff’s ability to
work safely at the time of the challenged employment action. 29 C.F.R.
§ 1630.2(r) (referencing “present” ability).
9
Kapche v. City of San Antonio, 304 F.3d 493, 498 (5th Cir. 2002)
(citing 29 C.F.R. § 1630.2(r)).
10
Rizzo v. Children’s World Learning Ctrs., Inc., 84 F.3d 758, 763 (5th
Cir. 1996) (citing 29 C.F.R. § 1630.2(r)).
11
29 C.F.R. § 1630.2(r).

213
11.12 PATTERN JURY INSTRUCTIONS

D. Defense to Discrimination Claim—Transitory

and Minor12

(For a claim involving regarded-as disability)

If you find that Defendant [name] [specify adverse
employment action] Plaintiff [name] because Plaintiff
[name] was regarded as having [specify impairment],
then you must find for Plaintiff [name] unless Defen-
dant [name] proves by a preponderance of the evidence
that the impairment Plaintiff [name] was regarded as
having was transitory and minor. It does not matter
what Defendant [name] believed. To succeed in this
defense, Defendant [name] must prove that the impair-
ment Plaintiff [name] was regarded as having would be
both transitory and minor. “Transitory” means the
[specify impairment] would last six months or less.

OR

(For a claim involving an actual disability) If

you find that Defendant [name] [specify adverse employ-
ment action] Plaintiff [name] because of Plaintiff
[name]’s [specify disability], then you must find for
Plaintiff [name] unless Defendant [name] proves by a
preponderance of the evidence that Plaintiff’s impair-
ment was minor. It does not matter what Defendant
[name] believed. To succeed in this defense, Defendant
[name] must prove that Plaintiff [name]’s [specify dis-
ability] actually was minor. The duration of the [specify
disability] does not matter.

12
Although the Fifth Circuit has not directly ruled on this issue,
district courts have held that the employer bears the burden to prove that
the plaintiff’s impairment was transitory and minor as an affirmative
defense. See Dube v. Tex. Health & Human Servs., No. SA-11-CV-354-XR,
2011 WL 4017959, at *2 (W.D. Tex. Sept. 8, 2011); Mesa v. City of San
Antonio, No. SA-17-CV-654-XR, 2018 WL 3946549, at *13 & n.13 (W.D.
Tex. Aug. 16, 2018) (explaining that the Fifth Circuit has implicitly agreed
with Dube and summarizing other circuit decisions (citing Burton v.
Freescale Semiconductor, Inc., 798 F.3d 222, 230 (5th Cir. 2015)).

214
EMPLOYMENT CLAIMS 11.12
11.12 Pattern Jury Question, Defenses to ADA
Claim—Business Necessity, Direct Threat,
or Transient-and-Minor Condition

JURY QUESTION

Question No. 1 (Business Necessity)

Has Defendant [name] proved that its policy that

caused Plaintiff [name] to be [specify adverse employ-
ment action] was justified by a business necessity?

Answer “Yes” or “No.”

———————————

Question No. 1 (Direct Threat)

Has Defendant [name] proved that Plaintiff

[name]’s [employment] [continued employment] would
have posed a direct threat to Plaintiff [name] or others
in the workplace?

Answer “Yes” or “No.”

———————————

Question No. 1 (Transitory and Minor,

Regarded-As Claims)

Has Defendant [name] proved that the impairment

Plaintiff [name] was regarded as having would be a
minor condition lasting six months or less?

Answer “Yes” or “No.”

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11.12 PATTERN JURY INSTRUCTIONS

———————————

Question No. 1 (Minor, Actual-Disability Claims)

Has Defendant [name] proved that Plaintiff

[name]’s [specify disability] was a minor condition?

Answer “Yes” or “No”

———————————

216
EMPLOYMENT CLAIMS 11.13
11.13 Mixed-Motive Affirmative Defense
Instruction (Title VII and ADA)

A. Committee Notes

The court should submit the mixed-motive defense

only when properly raised and when credible evidence
has been presented from which the jury could reason-
ably conclude that a mix of permissible and impermis-
sible reasons factored into the employer’s decision-
making process.1 If this instruction is submitted, the
motivating-factor language from 42 U.S.C. § 2000e-2(m)
should be used in place of the because-of causation
standard. This instruction and question should be in
addition to the other applicable instructions and
questions.

This instruction does not apply to an ADEA case,

see Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009),
a Title VII retaliation case, see Univ. of Tex. Sw. Med.
Ctr., 133 S. Ct. at 2533, or an ADA retaliation case, see
Feist, 730 F.3d at 454.2,3
1
Garcia v. City of Hous., 201 F.3d 672, 675 (5th Cir. 2000) (“[T]o
prove a mixed-motive defense the employer should be able to present
some objective proof that the same decision would have been made.”); see
also Machinchick v. PB Power, Inc., 398 F.3d 345 (5th Cir. 2005); Rachid v.
Jack in the Box, 376 F.3d 305, 309–10 (5th Cir. 2004); Roberson v. Alltel
Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004); Matthew R. Scott and
Russell D. Chapman, Much Ado About Nothing—Why Desert Palace Neither
Murdered McDonnell Douglas Nor Transformed All Employment Cases to
Mixed Motive, 36 St. Mary’s L.J. 395, 401 n.81 (2005).
2,
The Supreme Court recently held that but-for causation applies to
§ 1981 claims. See Comcast Corp. v. Nat’l Ass’n of African Am.-Owned
Media, 140 S. Ct. 1009, 1014–15 (2020) (“But, taken collectively, clues
from the statute’s text, its history, and our precedent persuade us that §
1981 follows the general rule. Here, a plaintiff bears the burden of show-
ing that race was a but-for cause of its injury.”).
3
The Fifth Circuit stated, in an unpublished decision, that the ADEA
and ADA adopt the “different degree[s] of proof required for showing
causation.” Hoffman v. Baylor Health Care Sys., 597 F. App’x 231, 253 &
n.12 (5th Cir. 2015). The Fifth Circuit stated that “the ADEA does not au-
thorize a mixed-motive[] claim of age discrimination, such that a plaintiff-
employee must show that age was the but-for cause of the alleged age
discrimination. In contrast, ‘[t]he proper causation standard under the

217
11.13 PATTERN JURY INSTRUCTIONS

B. Charge

If you find that Plaintiff [name]’s [protected trait]

was a motivating factor in the Defendant [name]’s deci-
sion to [specify adverse employment action] [him/her],
even though other considerations were factors in the
decision, then you must determine whether Defendant
[name] proved by a preponderance of the evidence that
it would have made the same decision even if it had not
considered Plaintiff [name]’s [protected trait].

ADA is a ‘motivating factor’ test . . . [i.e.,] ‘discrimination need not be the

sole reason for the adverse employment decision.’’ ’’ Id. at 253 n.12 (citing
Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008)) (citations
removed). The committee has provided options, including a “because-of”
standard; an alternative “but-for” standard; and cross-references to the
mixed-motives charges found in 11.1 and 11.13.

218
EMPLOYMENT CLAIMS 11.13
11.13 Pattern Jury Question, Mixed-Motive
Defense

JURY QUESTION

Has Defendant [name] proved that it would have

made the same decision to [specify adverse employment
action] Plaintiff [name] even if it had not considered
[his/her] [protected trait]?

Answer “Yes” or “No.”

———————————

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11.14 PATTERN JURY INSTRUCTIONS

11.14 Title VII and ADA Damages

A. Committee Notes

This charge can be used in Title VII and ADA cases.

1. Compensatory and Punitive Damages

The award of compensatory and punitive damages

in a Title VII employment-discrimination action is
governed by 42 U.S.C. § 1981a. See 42 U.S.C.
§ 1981a(a)(1), (b)(2). Equitable relief is authorized
under 42 U.S.C. § 2000e-5(g).

42 U.S.C. § 1981a(a)(1) authorizes a prevailing

plaintiff to receive compensatory damages, which may
be awarded for “future pecuniary losses, emotional pain,
suffering, inconvenience, mental anguish, loss of enjoy-
ment of life, and other nonpecuniary losses.”
§ 1981a(b)(3). Compensatory damages do not include
“backpay, interest on backpay, or any other type of
relief authorized under” 42 U.S.C. § 2000e-5(g). Com-
pensatory damages are capped under 42 U.S.C.
§ 1981a(b)(3).

42 U.S.C. § 1981a(b)(1) also authorizes a prevailing

plaintiff to receive punitive damages if the plaintiff
“demonstrates that the respondent engaged in a
discriminatory practice or discriminatory practices with
malice or with reckless indifference to the federally
protected rights of an aggrieved individual.” Punitive
damages are not available against “a government,
government agency or political subdivision.” 42 U.S.C.
§ 1981a(b)(1).

To recover punitive damages, a plaintiff must

impute liability for punitive damages to the employer.
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 539 (1999).
The plaintiff may establish that an employee of the
defendant acting in a “managerial capacity” acted with
malice or reckless indifference to the plaintiff’s feder-
ally protected rights. Kolstad, 527 U.S. at 543, 545–46.
220
EMPLOYMENT CLAIMS 11.14
“Unfortunately, no good definition of what constitutes a
‘managerial capacity’ has been found.” EEOC v. Serv.
Temps Inc., 679 F.3d 323, 336 (5th Cir. 2012) (quoting
Kolstad, 527 U.S. at 543) (punctuation altered). Gener-
ally, a “managerial capacity” employee must be “impor-
tant, but perhaps need not be the employer’s top
management, officers, or directors to be acting in a man-
agerial capacity.” Kolstad, 527 U.S. at 543 (internal
quotation marks omitted). “[D]etermining whether an
employee” acts in a “managerial capacity” is a “fact-
intensive inquiry.” Kolstad, 527 U.S. at 543. Relevant
factors include “the type of authority that the employer
has given to the employee, the amount of discretion
that the employee has in what is done and how it is
accomplished.” Kolstad, 527 U.S. at 543.

While the Kolstad managerial-capacity test has

been firmly rooted, it should be noted that the United
States Supreme Court examined agency principles and
supervisory status in Vance v. Ball State Univ., 133 S.
Ct. 2434 (2013). It does not appear that the Fifth
Circuit—or any other circuit—has examined whether
Vance impacted the Kolstad line of cases. That said,
pre-Vance cases from the Fifth Circuit mention the abil-
ity to make decisions like hiring or firing in their anal-
ysis under Kolstad. See Deffenbaugh-Williams v.
Wal-Mart Stores, Inc., 188 F.3d 278, 285 (5th Cir. 1999)
(en banc) (finding managerial capacity and noting that
manager had authority to make “personnel decisions
regarding Deffenbaugh and others in her department”);
Serv. Temps Inc., 679 F.3d at 337 (“[T]he jury could
reasonably have found that Ray had the authority to
hire and supervise employees and was therefore acting
in a managerial capacity.”). The committee will continue
to use the “managerial-capacity” language, but courts
and attorneys should be aware of this issue and may
wish to amend these instructions accordingly.

The cap on compensatory damages under 42 U.S.C.

§ 1981a(b)(3) applies to the award “for future pecuniary
losses, emotional pain, suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other nonpecuni-
221
11.14 PATTERN JURY INSTRUCTIONS

ary losses, and the amount of punitive damages

awarded under this section.” For each plaintiff, these
damages may not exceed:

(A) for a respondent who has more than 14 and

fewer than 101 employees in each of 20 or
more calendar weeks in the current or preced-
ing calendar year, $50,000;

(B) for a respondent with more than 100 and

fewer than 201 employees in each of 20 or
more calendar weeks in the current or preced-
ing calendar year, $100,000; and

(C) for a respondent with more than 200 and

fewer than 501 employees in each of 20 or
more calendar weeks in the current or preced-
ing calendar year, $200,000; and

(D) for a respondent with more than 500 employ-

ees in each of 20 or more calendar weeks in
the current or preceding calendar year,
$300,000.

42 U.S.C. § 1981a(b)(3).

A major limit on punitive damages is the Supreme

Court’s announcement that few awards exceeding a
single digit ratio between punitive and compensatory
damages will satisfy due process. State Farm Mut. Auto.
Ins. v. Campbell, 538 U.S. 408, 425 (2003).

In some cases, a party may bring parallel claims

under Title VII and § 1981 or the Equal Protection
Clause. Punitive damages are available under 42 U.S.C.
§ 1981 and 42 U.S.C. § 1983 and are not subject to Title
VII’s damages cap.

If a plaintiff seeks compensatory or punitive dam-

ages, either party may demand a trial by jury. 42 U.S.C.
§ 1981a(c). The jury would determine compensatory and
222
EMPLOYMENT CLAIMS 11.14
punitive damages without being instructed on the statu-
tory caps. The court would then reduce the amount in
accordance with the limits in § 1981a, if necessary. 42
U.S.C. § 1981a(c)(2).

2. Back Pay

42 U.S.C. § 2000e-5(g)(1) provides for the award of

back pay from the date of judgment back to two years
before the date the plaintiff filed an EEOC complaint.
Back pay is recoverable up to the date judgment is
entered and must exclude interim earnings.

Back pay is more than salary. It includes fringe

benefits such as vacation, sick pay, insurance, and
retirement benefits.

Back pay is recoverable only through 42 U.S.C.

§ 2000e-5(g)(1); it is specifically exempted from the def-
inition of compensatory damages under 42 U.S.C.
§ 1981a(b)(2). Back pay is not limited by the damages
cap of § 1981a.

Back pay is considered equitable relief. It is a ques-

tion for the court, but a jury trial may be appropriate to
decide the issue. When legal and equitable issues are
tried together and overlap factually, the Seventh
Amendment requires that findings necessarily made by
the jury in returning its verdict on legal claims are
binding on the trial court when it sits in equity. Even if
the legal and equitable issues do not overlap, the par-
ties may consent to have the issue tried by a jury or the
court may try the issue with an advisory jury. Fed. R.
Civ. P. 39(c); Black v. Pan Am. Labs., L.L.C., 646 F.3d
254, 263 (5th Cir. 2011). Pattern Jury Instruction 11.14
allows the jury to decide back pay. If the judge decides
not to submit the issue to the jury, the jury may be told
that should it find for the plaintiff, the court will award
past wages and benefits lost as a result of defendant’s
wrongful action, and the jury should not make any
award for lost pay.
223
11.14 PATTERN JURY INSTRUCTIONS

3. Front Pay

“Front pay” covers monetary damages for future

lost wages and benefits. Front pay is awarded only
when reinstatement is not feasible because a hostile re-
lationship exists between the employer and employee.
Front pay is an equitable remedy to be determined by
the court at the conclusion of the jury trial, but an advi-
sory jury may be used. Mota v. Univ. of Tex. Hous.
Health Sci. Ctr., 261 F.3d 512, 526 (5th Cir. 2001). A
recent, unpublished Fifth Circuit opinion held that if a
district court submits the front-pay issue to the jury,
without the parties’ objection and without mentioning
the jury’s advisory role, the jury verdict will be binding
and cannot be set aside by the district court on the the-
ory that it was advisory. Garza v. Starr Cty., 628 F.
App’x 887, 889–90 (5th Cir. Oct. 20, 2015)

4. Attorney’s Fees

Title VII authorizes the court to award attorney’s

fees to “the prevailing party.” 42 U.S.C. § 2000e-5(k).
An attorney’s fee award is an issue for the court, not
the jury.

5. No Double Recovery

The prohibition on double recovery means that a

plaintiff cannot recover additional damages for back
pay, for front pay, or compensatory damages for both
discrimination and retaliation arising from the same
factual basis. See EEOC v. Waffle House Inc., 534 U.S.
279, 297 (2002).

B. Charge

If you found that Defendant [name] violated [Title

VII/the ADA], then you must determine whether it has
caused Plaintiff [name] damages and, if so, you must
determine the amount of those damages. You should
not conclude from the fact that I am instructing you on
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EMPLOYMENT CLAIMS 11.14
damages that I have any opinion as to whether Plaintiff
[name] has proved liability.

Plaintiff [name] must prove [his/her] damages by a

preponderance of the evidence. Your award must be
based on evidence and not on speculation or guesswork.
On the other hand, Plaintiff [name] need not prove the
amount of [his/her] losses with mathematical precision,
but only with as much definitiveness and accuracy as
the circumstances permit.1

You should consider the following elements of

actual damages, and no others: (1) the amount of back
pay and benefits Plaintiff [name] would have earned in
[his/her] employment with Defendant [name] if [he/she]
had not been [specify challenged employment action]
from [date of adverse employment action] to the date of
your verdict, minus the amount of earnings and benefits
that Plaintiff [name] received from employment during
that time; (2) the amount of other damages2 sustained
by Plaintiff [name] [list recoverable elements supported
by the evidence, such as pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, and other
noneconomic losses].3

Back pay includes the amounts the evidence shows

Plaintiff [name] would have earned had [he/she]
[remained an employee of Defendant [name]] [been
promoted] [not been demoted] [other applicable
circumstance]. These amounts include wages or salary
and such benefits as life and health insurance, stock
options, and contributions to retirement. You must
1
Lowe v. Southmark Corp., 998 F.2d 335, 337 (5th Cir. 1993).
2
For additional instructions on compensatory damages, see Pattern
Jury Instruction 10.12.
3
This charge does not include front pay—future lost wages and
benefits—because they are an equitable remedy for the court to determine.
Section 1981a also provides that while a plaintiff may recover for “future
pecuniary losses,” that does not include “front” or future lost pay. Pollard
v. E.I. duPont de Nemours & Co., 532 U.S. 843 (2001).

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11.14 PATTERN JURY INSTRUCTIONS

subtract the amounts of earnings and benefits Defen-

dant [name] proves by a preponderance of the evidence
Plaintiff [name] received during the period in question.4

(If the defendant asserts and provides evi-

dence that the plaintiff failed to mitigate dam-
ages, the following charge should be given.) 5
Defendant claims that Plaintiff [name] failed to miti-
gate [his/her] damages. Plaintiff [name] has a duty
under the law to mitigate [his/her] damages, that is, to
exercise reasonable diligence under the circumstances
to minimize [his/her] damages.

To succeed on this defense, Defendant [name] must

prove, by a preponderance of the evidence: (a) that there
was substantially equivalent employment available; (b)
Plaintiff [name] failed to use reasonable diligence in
seeking those positions; and (c) the amount by which
4
Marks v. Prattco, 633 F.2d 1122, 1125 (5th Cir. 1981).
5
This charge may be used in conjunction with Charge 15.5. This
charge should be used only when the defendant asserts the affirmative
defense that the plaintiff failed to mitigate his or her damages. See Garcia
v. Harris Cty., No. H-16-2134, 2019 WL 132382, at *2 (S.D. Tex. Jan. 8,
2019) (“Courts have specifically acknowledged that, in the failure to miti-
gate context, the Sparks decision controls over the West and other later
conflicting decisions.”).
Earlier versions of this instruction included the following language:
“If Defendant proves that Plaintiff has not made reasonable efforts to
obtain work, Defendant does not have to establish the availability of
substantially equivalent employment.” Authority exists for this instruction.
See Sellers v. Dellgado Coll., 902 F.2d 1189, 1193 (5th Cir. 1990); see also
West v. Nabors Drilling USA, Inc., 330 F.3d 379, 393 (5th Cir. 2003). But
recent district court cases have observed that Sellers conflicts with the
previously decided Sparks v. Griffin, 460 F.2d 433, 443 (5th Cir. 1972),
which required that defendant prove that “there were jobs available which
appellant could have discovered and for which she was qualified.” See,
e.g., Newcomb v. Corinth Sch. Dist., No. 1:12-CV-0204-SA-DAS, 2015 WL
1505839, at *7 (N.D. Miss. Mar. 31, 2015) (applying Sparks under rule of
orderliness); Buckingham v. Booz Allen Hamilton, Inc., 64 F. Supp. 3d
981, 984 (S.D. Tex. 2014) (same). But see E.E.O.C. v. IESI Louisiana Corp.,
720 F. Supp. 2d 750, 755 (W.D. La. 2010) (recognizing the Sparks
“resurgence” but opting to follow the “newer” standard). Given this his-
tory, the Committee conclude that this language should not remain in a
pattern instruction but that courts and counsel should be aware of the
split.

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EMPLOYMENT CLAIMS 11.14
Plaintiff [name]’s damages were increased by [his/her]
failure to take such reasonable actions.6

“Substantially equivalent employment” in this

context means a job that has virtually identical promo-
tional opportunities, compensation, job responsibilities,
working conditions, and status as the job [he/she] [lost]
[was denied]. Plaintiff does not have to accept a job
that is dissimilar to the one [he/she] [lost] [was denied],
one that would be a demotion, or one that would be
demeaning.7 The reasonableness of Plaintiff [name]’s
diligence should be evaluated in light of [his/her] indi-
vidual characteristics and the job market.8

There is no exact standard for determining actual

damages. You are to determine an amount that will
fairly compensate Plaintiff [name] for the harm [he/she]
has sustained.9 Do not include as actual damages inter-
est on wages or benefits.

In addition to actual damages, you may consider

whether to award punitive damages. Punitive damages
are damages designed to punish a defendant and to de-
ter similar conduct in the future.10

You may award punitive damages if Plaintiff

[name] proves by a preponderance of the evidence that:
(1) the individual who engaged in the discriminatory
act or practice was acting in a managerial capacity; (2)
[he/she] engaged in the discriminatory act or practice
while acting in the scope of [his/her] employment; and
(3) [he/she] acted with malice or reckless indifference to
6
50-Off Stores, Inc. v. Banques Paribas (Suisse), S.A., 180 F.3d 247,
258 (5th Cir. 1999); Floca v. Homcare Health Servs., Inc., 845 F.2d 108
(5th Cir. 1988); Ballard v. El Dorado Tire Co., 512 F.2d 901, 906 (5th Cir.
1975).
7
Ford Motor Co. v. EEOC, 458 U.S. 219 (1982).
8
Sellers, 902 F.2d at 1193.
9
Seventh Cir. Pattern Jury Instr. 7.23
10
Kolstad, 527 U.S. at 545–546.

227
11.14 PATTERN JURY INSTRUCTIONS

Plaintiff [name]’s federally protected right to be free

from discrimination.11

If Plaintiff [name] has proved these facts, then you

may award punitive damages, unless Defendant [name]
proves by a preponderance of the evidence that the
[conduct] [act] was contrary to its good-faith efforts to
prevent discrimination in the workplace.12

In determining whether [employee’s name] was a

supervisor or manager for Defendant [name], you
should consider the type of authority [employee’s name]
had over Plaintiff [name] and the type of authority for
employment decisions Defendant [name] authorized
[employee name] to make.13

An action is in “reckless indifference” to Plaintiff

[name]’s federally protected rights if it was taken in the
face of a perceived risk that the conduct would violate
federal law.14 Plaintiff [name] is not required to show
egregious or outrageous discrimination to recover puni-
tive damages. Proof that Defendant [name] engaged in
intentional discrimination, however, is not enough in
itself to justify an award of punitive damages.15

In determining whether Defendant [name] made

good-faith efforts to prevent discrimination in the
11
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 284
n.4 (5th Cir. 1999). As noted above, courts should consider the possible
impact of Vance v. Ball State University. The Committee takes no position
with respect to Vance’s potential impact on Kolstad.
12
Kolstad, 527 U.S. at 545–46; Deffenbaugh-Williams, 188 F.3d at
281, 286.
13
Kolstad, 527 U.S. at 543; EEOC v. Serv. Temps Inc., 679 F.3d 323,
336 (5th Cir. 2012) (“In deciding whether an employee serves in a mana-
gerial capacity, courts consider ‘the type of authority that the employer
has given to the employee, the amount of discretion that the employee has
in what is done and how it is accomplished.’ ’’ (quoting Kolstad, 527 U.S.
at 543)); Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir.
1994).
14
Kolstad, 527 U.S. at 536.
15
Kolstad, 527 U.S. at 535.

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EMPLOYMENT CLAIMS 11.14
workplace, you may consider whether it adopted anti-
discrimination policies, whether it educated its employ-
ees on the federal antidiscrimination laws, how it
responded to Plaintiff [name]’s complaint of discrimina-
tion, and how it responded to other complaints of
discrimination.16

If you find that Defendant [name] acted with malice

or reckless indifference to Plaintiff [name]’s rights [and
did not make a good-faith effort to comply with the law],
then in addition to any other damages you find Plaintiff
[name] is entitled to receive, you may, but are not
required to, award Plaintiff [name] an additional
amount as punitive damages for the purposes of punish-
ing the Defendant [name] for engaging in such wrong-
ful conduct and deterring Defendant [name] and others
from engaging in such conduct in the future. You should
presume that Plaintiff [name] has been made whole for
[his/her] injuries by any actual damages you have
awarded.

If you decide to award punitive damages, you

should consider the following in deciding the amount:

1. How reprehensible Defendant [name]’s conduct

was. You may consider whether the harm
Plaintiff [name] suffered was physical or eco-
nomic or both; whether there was violence,
intentional malice, or reckless disregard for hu-
man health or safety; whether Defendant’s
[name]’s conduct that harmed Plaintiff [name]
also posed a risk of harm to others; whether
there was any repetition of the wrongful con-
duct or there was past conduct of the same sort
that harmed Plaintiff [name].
16
Meritor, 477 U.S. at 72 (1986); Faragher v. City of Boca Raton, 524
U.S. 775, 807 (1998); Deffenbaugh-Williams, 188 F.3d at 286. See also
EEOC v. Boh Bros. Const. Co., LLC, 731 F.3d 444, 467 & n.30 (5th Cir.
2013) (explaining the difference between the Ellerth/Farapher affirmative
defense and the good-faith defense for punitive damages).

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11.14 PATTERN JURY INSTRUCTIONS

2. How much harm Defendant [name]’s wrongful

conduct caused Plaintiff [name] [and could
cause [him/her] in the future].17

3. What amount of punitive damages, in addition

to the other damages already awarded, is
needed, considering Defendant [name]’s finan-
cial condition, to punish Defendant [name] for
its conduct toward Plaintiff [name] and to deter
Defendant [name] and others from similar
wrongful conduct in the future.

4. [The amount of fines and civil penalties ap-

plicable to similar conduct.]18

The amount of any punitive damages award should

bear a reasonable relationship to the harm caused
Plaintiff [name].

(For use in multiple-defendant cases) You may

assess punitive damages against any, or all, of the
defendants, or you may refuse to impose punitive
damages. If punitive damages are imposed on more
than one defendant, the amounts for each may be the
same or they may be different.

17
If no evidence has been introduced as to harm to nonparties, it may
be appropriate to add: “You may not consider harm to others in deciding
the amount of punitive damages to award.”
18
This language should be used only if there is evidence of fines and
civil penalties.

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EMPLOYMENT CLAIMS 11.14
11.14 Pattern Jury Questions, Title VII and
ADA—Damages

JURY QUESTIONS

Question No. 1

What sum of money, if paid now in cash, would

fairly and reasonably compensate Plaintiff [name] for
the damages, if any, you have found Defendant [name]
caused Plaintiff [name]?

Answer in dollars and cents for the following items

and none other:

1. Past pain and suffering, inconvenience, mental

anguish, and loss of enjoyment of life.

$—————

2. Future pain and suffering, inconvenience, mental

anguish, and loss of enjoyment of life.

$—————

3. Wages and benefits from [specify date] to [specify

date].

$—————

Question No. 2

Do you find that Plaintiff [name] failed to reduce

[his/her] damages through the exercise of reasonable
diligence in seeking, obtaining, and maintaining
substantially equivalent employment after the date of
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11.14 PATTERN JURY INSTRUCTIONS

[his/her] [specify tangible or adverse employment ac-

tion]?1

Answer “Yes” or “No.”

—————

If you answered “Yes” to Question No. 2, then

answer Question No. 3.

Question No. 3

How much would Plaintiff [name] have earned had

[he/she] exercised reasonable diligence under the cir-
cumstances to minimize [his/her] damages?

Answer in dollars and cents, if any.

$—————

Question No. 4

Do you find that Plaintiff [name] should be awarded

punitive damages?

Answer “Yes” or “No.”

———————————

If you answered “Yes” to Question No. 4, then

answer Question No. 5:
1
This question may need modification if the parties dispute whether
plaintiff failed to mitigate other categories of damages.

232
EMPLOYMENT CLAIMS 11.14

Question No. 5

What sum of money should be assessed against

Defendant [name] as punitive damages?

Answer in dollars and cents:

$———————————

233
11.15 PATTERN JURY INSTRUCTIONS

11.15 Discrimination Based on Age (ADEA

Disparate Treatment)

A. Committee Notes

This charge is for ADEA cases in which the plaintiff

alleges discrimination because of age, 40 years or older.1
This charge applies to disparate-treatment cases in
which facts material to each element of proof are in
dispute, with the exception of whether the plaintiff suf-
fered a tangible employment action.2 The charge may
be modified depending on what issues are factually
disputed. If the plaintiff asserts constructive discharge,
see Pattern Jury Instruction 11.6.3
1
Under ADEA § 623(f), there are particular defenses available to a
defendant that maintains its decision was the result of a bona fide oc-
cupational qualification or a bona fide seniority system. In these cases, the
jury must be instructed on the elements of the particular defense asserted.
These charges do not contain those defensive instructions.
2
In federal-sector cases, the statute requires that federal employ-
ment “personnel actions” be made “free from any discrimination based on
age.” 29 U.S.C. § 633a(a). It is not yet clear in the Fifth Circuit whether
this provides more protection in federal-sector cases than is otherwise pre-
sent under the ADEA. In Babb v. Wilkie, No. 18-882, 2020 WL 1668281, at
*2–3 (April 6, 2020), the Supreme Court addressed the phrase “free from
any discrimination based on age.” The Court held that the statutory
language “demands that personnel actions be untainted by any consider-
ation of age.” Id. at *3. The Court continued: “This 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.” Id. For those
forms of relief, the Court explained, “a plaintiff must show that age was a
but-for cause of the challenged employment decision.” Id. “But if age
discrimination played a lesser part in the decision, other remedies may be
appropriate.’’ Id.
3
It is unclear whether a cat’s paw charge based on Staub v. Proctor
Hospital, 131 S. Ct. 1186 (2011), may still be used in an ADEA case in the
wake of Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), which
eliminated the mixed-motive theory in an ADEA case and made clear that
the but-for causation standard applies. The Supreme Court in Staub ap-
plied the cat’s paw theory to a claim under the Uniformed Services
Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301,
et seq., which requires proof that protected military status “is a motivat-
ing factor in the employer’s action.” Staub, 131 S. Ct. at 1190–91 (quoting
38 U.S.C. § 4311(a)). In Holliday v. Commonwealth Brands, Inc., 483 F.

234
EMPLOYMENT CLAIMS 11.15
B. Charge

Plaintiff [name] claims [he/she] would not have

been [specify tangible employment action] but for [his/
her] age.4

App’x. 917, 922 n.2 (5th Cir. 2012), cert. denied, 133 S. Ct. 1272 (U.S.
2013), the Fifth Circuit noted that “[b]ecause the ‘motivating factor’ phrase
is not in the ADEA, and because the Court construed that phrase in
recognizing ‘cat’s paw’ liability under USERRA, and finally, because the
Court has focused closely on the text of the antidiscrimination statutes in
authorizing theories of liability, it could very well be that our prior recog-
nition of ‘cat’s paw’ liability under the ADEA was incorrect.” Holliday, 483
F. App’x at 922 n.2. In Zamora v. City of Houston, 798 F.3d 326 (5th Cir.
2015), the Fifth Circuit clarified this issue, holding that a cat’s-paw analy-
sis remains a viable theory of causation in Title VII retaliation claims.
The Fifth Circuit found that University of Texas Southwest Medical Center
v. Nassar, 570 U.S. 338 (2013), and Staub v. Proctor Hospital, 562 U.S.
411 (2011), have made clear that the cat’s-paw analysis remains viable in
the but-for causation context. In Staub, the Court “explicitly blessed the
use of the cat’s paw analysis’’ in the context of an employment claim
requiring that the unlawful animus be a “motivating factor” for the
employer’s action (there, a USERRA claim). Zamora, 798 F.3d at 332.
“Nassar changed the strength of the causal link—between the supervisor’s
actions and the adverse employment action—that the plaintiff must
establish.” Id. “Nassar says nothing about whether a supervisor’s unlaw-
ful animus may be imputed to the decisionmaker; it simply requires that
the supervisor’s influence with the decisionmaker be strong enough to
actually cause the adverse employment action.” Id. This reasoning ap-
pears to apply in the ADEA context, and therefore, the cat’s paw theory is
still applicable even when “but-for” causation is required. See also EEOC
v. DynMcDermott Petrol. Operations Co., 537 F. App’x 437, 443–45 (5th
Cir. 2013) (per curiam) (using the cat’s-paw analysis to assess evidence of
but-for causation in an ADEA case).
If a cat’s paw charge is appropriately given, the instruction in Pattern
Jury Instruction 11.7 may be used as a starting point, though the court
should modify it because of the differences in causation standards be-
tween Title VII/USERRA (motivating factor) and the ADEA (but-for). At a
minimum, a stricter causation standard applies to cat’s paw claims under
a but-for statute like the ADEA. Sims v. MVM, Inc., 704 F.3d 1327,
1335–37 (11th Cir. 2013) (evaluating the cat’s paw argument in ADEA
context and finding that a different standard applies).
The charge will also have to be adapted if the defense is raised that
age is a bona fide occupational qualification reasonably necessary for suc-
cessful job performance, and that the employer had a reasonable basis to
believe that all or substantially all persons over the age qualification
would be unable to perform the job safely and efficiently.
4
The Supreme Court in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
(2009), eliminated the mixed-motive theory in an ADEA case and made

235
11.15 PATTERN JURY INSTRUCTIONS

Defendant [name] denies Plaintiff [name]’s claims

and contends that [specify Defendant’s contentions].

It is unlawful for an employer to discriminate

against an employee because of the employee’s age.

To prove unlawful discrimination, Plaintiff [name]

must prove by a preponderance of the evidence that:

1. [he/she] was [specify tangible employment ac-

tion];

2. [he/she] was 40 years or older when [he/she]

was [specify tangible employment action]; and

3. Defendant [name] would not have [specify

tangible employment action] but for Plaintiff
[name]’s age.

Plaintiff [name] must prove that, in the absence

of—but for—[his/her] age, Defendant [name] would not
have decided to [specify tangible employment action]
[him/her].5 If you find that Defendant [name]’s stated
reason for its [specify tangible employment action] is
not the real reason but is a pretext for age discrimina-
tion, you may, but are not required to, find that
Defendant [name] would not have decided to [specify
tangible employment action] Plaintiff [name] but for
[his/her] age.6

clear that the but-for causation standard applies. See Pattern Jury
Instruction 11.15(5).
5
Gross, 557 U.S. 167; see also Leal v. McHugh, 731 F.3d 405, 411
(5th Cir. 2013); Newberry v. Burlington Basket Co., 622 F.3d 979, 981–82
(8th Cir. 2010); Dillon v. W. Publ’g. Corp., 409 F. App’x 152, 155–56 (9th
Cir. 2011).
6
Ratliff v. City of Gainesville, Tex., 256 F.3d 355, 359–62 (5th Cir.
2001).

236
EMPLOYMENT CLAIMS 11.15
11.15 Pattern Jury Question, Discrimination
Based on Age (Disparate Treatment)

JURY QUESTION

Question No. 1

Has Plaintiff [name] proved that, but for [his/her]

age, Defendant [name] would not have taken the
[specify tangible employment action] against [him/her]?

Answer “Yes” or “No.”

———————————

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11.16 PATTERN JURY INSTRUCTIONS

11.16 Harassment Based on Age (ADEA Hostile

Work Environment)

A. Committee Notes

The Fifth Circuit first recognized a hostile work

environment claim under the ADEA in 2011.1 The Fifth
Circuit noted in Dediol and earlier cases that the ADEA
and Title VII share common substantive features.2 The
following is a starting point, primarily drawn from
Pattern Jury Instructions 11.2 and 11.4, as well as the
Dediol opinion.

A mixed-motive theory of liability is unusual in

hostile-work-environment claims. In addition, the
Supreme Court’s decision in Gross, which eliminated
the mixed-motive theory in an ADEA discrimination
case, may also apply to ADEA harassment cases. That
would make the mixed-motive theory inapplicable in an
ADEA harassment case. The but-for standard is there-
fore used, without a mixed-motive alternative. If the
plaintiff alleges constructive discharge, refer to Pattern
Jury Instruction 11.6.

B. Charge

Plaintiff [name] claims that [he/she] would not have

been harassed by [his/her] [supervisor/coworker/third-
party]3 but for [his/her] age.
1
Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 440–41 (5th Cir. 2011)
(“A plaintiff advances such a claim by establishing that (1) he was over
the age of 40; (2) the employee was subjected to harassment, either
through words or actions, based on age; (3) the nature of the harassment
was such that it created an objectively intimidating, hostile, or offensive
work environment; and (4) there exists some basis for liability on the part
of the employer.”).
2
Dediol, 655 F.3d at 440–41; see also Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 309, 312 (5th Cir. 2004).
3
Dediol involved harassment by a supervisor. Title VII case law rec-
ognizes a hostile-work-environment claim for alleged harassment by a
coworker or third-party as well. Sharp v. City of Houston, 164 F.3d 923,

238
EMPLOYMENT CLAIMS 11.16
Defendant [name] denies Plaintiff [name]’s claims
and contends that [specify Defendant’s contentions].

It is unlawful for an employer to discriminate

against an employee because of the employee’s age. This
includes harassment on the basis of age.

For Defendant [name] to be liable for harassment

based on age, Plaintiff [name] must prove by a prepon-
derance of the evidence that Plaintiff [name] is over the
age of 40 and that [harasser’s name] engaged in harass-
ment based on Plaintiff [name]’s age and:

1. the conduct was sufficiently severe or pervasive

to:

a. alter the terms or conditions of Plaintiff

[name]’s employment; and

b. create a hostile or abusive work environ-

ment;4 and

2. Defendant [name] knew, or in the exercise of

reasonable care should have known, that Plain-
tiff [name] was being harassed based on the
Plaintiff [name]’s age. To make this showing,
Plaintiff [name] must prove that:

a. the harassment was known by or com-

municated to a person who had the author-

928–29 (5th Cir. 1999). See also Gardner v. CLC of Pascagoula, L.L.C.,
915 F.3d 320, 321–22 (5th Cir. 2019) (although “[c]laims of sexual harass-
ment typically involve the behavior of fellow employees,” “nonemployees
can be the source of the harassment”). Because the ultimate focus of Title
VII liability is on the employer’s conduct, unless a supervisor is the
harasser, a plaintiff must show that the employer knew or should have
known about the hostile work environment but allowed it to persist. See
Vance v. Ball State Univ., 570 U.S. 421, 427 (2013).
4
Dediol, 655 F.3d at 441 (quoting Alaniz v. Zamora-Quezada, 591
F.3d 761, 771 (5th Cir. 2009)).

239
11.16 PATTERN JURY INSTRUCTIONS

ity to receive, address, or report the com-

plaint, even if that person did not do so;5 or

b. the harassment was so open and obvious

that Defendant [name] should have known
of it;6 and

c. Defendant [name] failed to take prompt re-

medial action designed to stop the
harassment.

For Defendant [name] to be liable for harassment,

Plaintiff [name] must prove that the conduct was suf-
ficiently severe or pervasive to alter the terms or condi-
tions of Plaintiff [name]’s employment and create a
hostile or abusive work environment. To determine
whether the conduct in this case rises to a level that
alters the terms or conditions of Plaintiff [name]’s
employment, you should consider all the circumstances,
including: the frequency of the conduct; its severity;
whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreason-
ably interferes with Plaintiff [name]’s work
performance. There is no requirement that the conduct
be psychologically injurious.

Harassment on the basis of age may include

extremely insensitive conduct, but simple teasing,
offhand comments, sporadic use of offensive language,
occasional jokes related to age, and isolated incidents
(unless extremely serious) will generally not amount to
discriminatory changes in the terms and conditions of
employment. Discriminatory intimidation, ridicule, or
other verbal or physical conduct may be sufficiently
extreme to alter the terms and conditions of
employment.
5
Williamson v. City of Hous., Tex., 148 F.3d 462, 466–67 (5th Cir.
1998).
6
Sharp, 164 F.3d at 929.

240
EMPLOYMENT CLAIMS 11.16
In determining whether a hostile work environ-
ment existed, you must consider the evidence from both
Plaintiff [name]’s perspective and from the perspective
of a reasonable person. First, you must look at whether
Plaintiff [name] actually found the conduct offensive.
Next, you must look at the evidence from the perspec-
tive of a reasonable person’s reaction to a similar
environment under similar circumstances. You cannot
view the evidence from the perspective of an overly
sensitive person. Nor can you view the evidence from
the perspective of someone who is never offended.
Rather, the alleged harassing behavior must be such
that a reasonable person in the same or similar circum-
stances as Plaintiff [name] would find the conduct
offensive.

(Use this paragraph for cases alleging vicari-

ous liability based on supervisor harassment with
no tangible employment action (the ADEA equiv-
alent of Pattern Jury Instruction 11.2.)) If you find
that Plaintiff [name] was harassed on the basis of age,
then you must find for [him/her] unless Defendant
[name] proves by a preponderance of the evidence that
(a) it exercised reasonable care to prevent and promptly
correct any harassing behavior, and (b) Plaintiff [name]
unreasonably failed to take advantage of any preven-
tive or corrective opportunities provided by Defendant
[name] or to avoid harm otherwise. If Defendant [name]
proves both (a) and (b), then you must find for Defen-
dant [name].

(Use the next two paragraphs for cases alleg-

ing harassment by coworker/third-party that does
not involve vicarious liability (the ADEA equiva-
lent of Pattern Jury Instruction 11.4.)) If you find
that Plaintiff [name] was harassed on the basis of age,
then you must determine whether [he/she] has proved
by a preponderance of the evidence that Defendant
[name] knew or should have known of the harassment.
241
11.16 PATTERN JURY INSTRUCTIONS

Plaintiff [name] must prove that (a) the harassment

was known or communicated to a person who had the
authority to receive, address or report the complaint,
even if that person did not do so, or (b) that the harass-
ment was so open and obvious that Defendant [name]
should have known of it. If you find that Plaintiff
[name] has proved both (a) and (b), then you must
consider whether Defendant [name] took reasonable
and prompt steps to stop the harassment.

Reasonable and prompt action to correct harassing

behavior is conduct by the employer that is reasonably
calculated to stop the harassment and remedy the
situation. Whether Defendant [name]’s actions were
reasonable and timely depends on the facts. Among
other things, you may look at the effectiveness of any
actions taken.

242
EMPLOYMENT CLAIMS 11.16
11.16 Pattern Jury Questions, Harassment
Based on Age (ADEA Hostile Work
Environment)

JURY QUESTIONS

Question No. 1 (For both vicarious and direct

liability):

Was Plaintiff [name] subject to harassment that

would not have occurred but for [his/her] age?1

Answer “Yes” or “No.”

———————————

If you answered “Yes” to Question No. 1, then

answer Question No. 2:

Question No. 2 (For vicarious liability—the ADEA

equivalent of Pattern Jury Instruction 11.2):

Has Defendant [name] proved that it exercised rea-

sonable care to promptly correct any harassment of
Plaintiff [name] because of [his/her] age?

Answer “Yes” or “No.”

———————————
1
In Gross, the Supreme Court eliminated the mixed-motive theory in
ADEA discrimination cases. It is likely that this holding extends to ADEA
harassment cases, meaning that only the but-for pretext causation stan-
dard should be used. See, e.g., Gloetzner v. Lynch, 225 F. Supp. 3d 1329,
1346–47 (N.D. Fla. 2016). Additionally, a mixed-motive theory of liability
is not commonly asserted in harassment hostile-work-environment claims.
The mixed-motive alternative is therefore not included.

243
11.16 PATTERN JURY INSTRUCTIONS

If you answered “Yes” to Question No. 2, then

answer Question No. 3:

Question No. 3 (For vicarious liability—the ADEA

equivalent of Pattern Jury Instructions 11.2)

Has Defendant [name] proved that Plaintiff [name]

unreasonably failed to take advantage of or use any
preventative or corrective opportunities provided by
Defendant [name], or to avoid harm otherwise?

Answer “Yes” or “No.”

———————————

OR

Question No. 2 (For coworker/third-party harass-

ment that does not involve vicarious liability—
the ADEA equivalent of Pattern Jury Instruction
11.4)

Did Defendant [name] know, or in the exercise of

reasonable care should it have known, that Plaintiff
[name] was being harassed?

Answer “Yes” or “No.”

———————————

If you answered “Yes” to Question No. 2, then

answer Question No. 3:

Question No. 3 (For coworker/third-party harass-

ment that does not involve vicarious liability—
the ADEA equivalent of Pattern Jury Instruction
11.4)

244
EMPLOYMENT CLAIMS 11.16

Did Defendant [name] fail to take prompt action to

stop the harassment?

Answer “Yes” or “No.”

———————————

245
11.17 PATTERN JURY INSTRUCTIONS

11.17 ADEA—Retaliation

The ADEA also proscribes retaliation against em-

ployees for engaging in an activity protected by the
statute.1 The ADEA does not authorize liability for a
mixed-motive age discrimination claim.2 The holding in
Gross has been applied to preclude a mixed-motive
ADEA retaliation claim.3 The jury charge should use
the but-for causation standard for an ADEA retaliation
claim and not mixed-motive.4

1
Gomez-Perez v. Potter, 553 U.S. 474, 486–87 (2008).
2
See Gross, 557 U.S. at 178.
3
See Barton v. Zimmer, Inc., 662 F.3d 448, 455–56 (7th Cir. 2011).
4
See Pattern Jury Instruction 11.5; Pattern Jury Instruction 11.11.

246
EMPLOYMENT CLAIMS 11.18
11.18 ADEA Damages

A. Committee Notes

Although this charge may be used in ADEA cases,

it must be adapted based on the causation standard
that applies.

Under the Fair Labor Standards Act, a prevailing

plaintiff may be awarded liquidated damages. See 29
U.S.C. § 216(b).1 The ADEA incorporates some of the
FLSA’s remedial provisions. See 29 U.S.C. § 626(b).
When there is a finding that an ADEA violation was
willful, the plaintiff may be awarded liquidated dam-
ages, which is the amount the jury calculates plus an
equal amount. Front pay is not included in a liquidated
damages award.2 Rather, a liquidated damages award
is limited to double the amount of back pay and
benefits.3

Back pay encompasses what the plaintiff would

have received in compensation but-for the employer’s
ADEA violation. Palasota v. Haggar Clothing Co., 499
F.3d 474, 482–83 (5th Cir. 2007). In general, back pay
liability in a wrongful-termination case begins when
the discriminatory conduct causes economic injury and
ends when judgment is entered. Palasota, 499 F.3d at
482–83.

Neither punitive damages nor compensatory dam-

ages for pain and suffering are recoverable under the
ADEA. Hazen Paper Co. v. Biggins, 507 U.S. 604, 615
(1993); Trans World Airlines, Inc. v. Thurston, 469 U.S.
111, 125 (1985); Vaughan v. Anderson Reg’l Med. Ctr.,
849 F.3d 588, 594 (5th Cir. 2017); West v. Nabors Drill-
ing USA, Inc., 330 F.3d 379, 391–92 (5th Cir. 2003).
1
See Lubke v. City of Arlington, 455 F.3d 489, 499 (5th Cir. 2006).
2
Front pay is recoverable under the ADEA. Miller v. Raytheon Co.,
716 F.3d 138, 148–49 (5th Cir. 2013). Reasonable attorney’s fees are also
recoverable, but prejudgment interest is not. Miller, 716 F.3d at 148-49.
3
Lubke, 455 F.3d at 499.

247
11.18 PATTERN JURY INSTRUCTIONS

B. Charge

If you found that Defendant [name] violated the

ADEA, then you must determine whether it has caused
Plaintiff [name] damages. If so, you must determine
the amount. You should not conclude from the fact that
I am instructing you on damages that I have any
opinion as to whether Plaintiff [name] has proved
liability.

Plaintiff [name] must prove [his/her] damages by a

preponderance of the evidence. Your award must be
based on evidence and not on speculation or guesswork.
On the other hand, Plaintiff [name] need not prove the
amount of [his/her] losses with mathematical precision,
but only with as much definitiveness and accuracy as
the circumstances permit.4

You should consider the following elements of dam-

ages, and no others: the amounts the evidence shows
Plaintiff [name] would have earned had [he/she]
[remained an employee of Defendant [name]] [been
promoted] [not been demoted] [identify other applicable
status] to the date of your verdict, including benefits
such as life and health insurance,5 stock options, or
contributions to retirement, minus the amounts of earn-
ings and benefits, if any, that Defendant [name] proves
by a preponderance of the evidence Plaintiff [name]
received in the interim.6

(For cases in which failure to mitigate is as-

serted) Defendant [name] asserts that Plaintiff [name]
4
Lowe v. Southmark Corp., 998 F.2d 335, 337 (5th Cir. 1993).
5
Damages for lost insurance benefits are recoverable only if the
plaintiff shows that he or she actually incurred these expenses by replac-
ing the lost insurance or suffering the insured risk. Lubke, 455 F.3d at 499
(citing Pearce v. Carrier Corp., 966 F.2d 958 (5th Cir. 1992)).
6
Palasota, 499 F.3d at 482–83; Marks v. Prattco, 633 F.2d 1122, 1125
(5th Cir. 1981).

248
EMPLOYMENT CLAIMS 11.18
failed to mitigate [his/her] damages.7 To prevail on this
defense, Defendant [name] must show, by a preponder-
ance of the evidence: (a) there was substantially equiv-
alent employment available; (b) Plaintiff [name] failed
to use reasonable diligence in seeking those positions;
and (c) the amount by which Plaintiff [name]’s damages
were increased by [his/her] failure to take such reason-
able actions.8

“Substantially equivalent employment” means a

job that has virtually identical promotional opportuni-
ties, compensation, job responsibilities, working condi-
tions, and status as the job [he/she] [lost/was denied].
Plaintiff [name] does not have to accept a job that is
dissimilar to the one [he/she] [lost/was denied], one that
would be a demotion, or one that would be demeaning.10
The reasonableness of Plaintiff [name]’s diligence
should be evaluated in light of [his/her] individual
characteristics and the job market.11

(For cases in which the plaintiff has submit-

ted sufficient evidence that the violation was will-
ful) Plaintiff [name] asserts that Defendant [name]’s
alleged age discrimination was willful.

If you find that Defendant [name] would not have

[specify tangible employment action] Plaintiff [name]
but for [his/her] age, then you must also determine
whether Defendant [name]’s action was willful. To es-
tablish willfulness, Plaintiff [name] must also prove
7
This instruction should be used only when the defendant asserts
the affirmative defense that the plaintiff failed to mitigate his or her
damages.
8
50-Off Stores, Inc. v. Banques Paribas (Suisse), S.A., 180 F.3d 247,
258 (5th Cir. 1999); Floca v. Homcare Health Servs., Inc., 845 F.2d 108
(5th Cir. 1988); Ballard v. El Dorado Tire Co., 512 F.2d 901, 906 (5th Cir.
1975).
10
Ford Motor Co. v. EEOC, 458 U.S. 219 (1982).
11
Sellers v. Delgado Coll., 902 F.2d 1189, 1193 (5th Cir. 1990); see also
Palasota, 499 F.3d at 482–83.

249
11.18 PATTERN JURY INSTRUCTIONS

that, when Defendant [name] [specify tangible employ-

ment action] [him/her], Defendant [name] either (a)
knew that its conduct violated the ADEA, or (b) acted
with reckless disregard for whether [his/her/its] conduct
complied with the ADEA.12 A plaintiff who proves that
[his/her] [former] employer acted willfully in violating
the ADEA is entitled to additional damages.

12
Thurston, 469 U.S. at 126.

250
EMPLOYMENT CLAIMS 11.18
11.18 Pattern Jury Questions, ADEA Damages

JURY QUESTIONS

Question No. 1

What sum of money, if paid now in cash, would

fairly and reasonably compensate Plaintiff [name] for
the damages, if any, you have found Defendant [name]’s
wrongful conduct, if any, caused Plaintiff [name]?

Answer in dollars and cents for the following items,

and no others:

Past wages and benefits from [specify

date] to [specify date]
$—————

Question No. 2

What sum of money, if paid now in cash, is the

amount by which Plaintiff [name]’s damages, if any,
could have been reduced through [his/her] reasonable
diligence in seeking, obtaining, and maintaining
substantially equivalent employment after the date of
[his/her] [specify tangible employment action]?

Answer in dollars and cents, if any.

$—————

Question No. 3

251
11.18 PATTERN JURY INSTRUCTIONS

Was Defendant [name]’s [specify tangible employ-

ment action] willful?

Answer “Yes” or “No.”

———————————

252
EMPLOYMENT CLAIMS 11.19
11.19 Interference With FMLA Leave

A. Committee Notes

This charge is for cases in which the plaintiff al-

leges that his or her leave rights under the FMLA were
interfered with, restrained, or denied.1

B. Charge

Plaintiff [name] claims that [he/she] was entitled to

time off from work2 under the FMLA, and that Defen-
dant [name] interfered with, restrained, or denied [his/
her] entitlement to that time off.

Defendant [name] denies Plaintiff [name]’s claims

and contends that [specify contentions].3

It is unlawful for an employer to interfere with, re-

strain, or deny the exercise of, or the attempt to
exercise, any right provided by the FMLA. 4 FMLA
rights include [requesting or taking leave under the
1
To state an interference claim, the employee must show that his or
her employer interfered with or denied him or her an FMLA benefit to
which he or she was entitled. The employee does not have to allege that
the employer intended to deny the right. The employer’s motives are
irrelevant. In contrast, an FMLA-retaliation plaintiff must prove that his
or her employer retaliated because he or she engaged in activity protected
by the FMLA. See Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th Cir.
2017) (listing elements to establish a prima facie case of interference);
Acker v. Gen. Motors, LLC, 853 F.3d 784, 790 (5th Cir. 2017) (to prove
FMLA retaliation, the plaintiff must establish a causal link between the
protected activity and the adverse action).
There are many terms within the FMLA and its regulations that, in
most cases, need not be the subject of a specific instruction. But there may
be cases in which specific instructions defining terms are appropriate. See,
e.g., 29 C.F.R. §§ 825.113 (“Serious Health concern”); 825.124 (“Needed to
Care For”); 825.215 (“Equivalent Position”); 825.217 (“Key Employee”).
2
29 U.S.C. § 2612(a)(1).
3
Such reasons may include, but are not limited to, that the employee
did not give notice of his or her need for leave, or gave untimely or insuf-
ficient notice.
4
29 U.S.C. § 2615(a)(1).

253
11.19 PATTERN JURY INSTRUCTIONS

statute] [having the employer maintain certain employ-

ment benefits during the leave] [once leave is completed,
being restored to the position the employee held when
the leave began, or to a position that has equivalent
employment benefits, pay, and other terms and
conditions].5

An employee is eligible to take leave if, when the

leave began, [he/she]: (1) had been employed by the
employer for at least 12 months; and (2) worked at least
1,250 hours during the previous 12-month period.6

If eligible,7 an employee is entitled to take up to 12

weeks of leave in any 12-month period [specify one or
more of the following, as applicable]:

1. because of the birth of the employee’s child and

to care for that child;

2. because of the placement of a child with the

employee for adoption or foster care;

3. to care for the employee’s spouse, son, daugh-

ter, or parent, if that person had a “serious
health condition”;

4. because of a “serious health condition” that

made the employee unable to perform the func-
tions of [his/her] position; or
5
29 U.S.C. § 2612(a)(1) (entitlement to leave); 29 U.S.C. § 2614(a)(1)
(restoration to same or equivalent position); 29 U.S.C. § 2614(c)(1) (main-
tenance of “group health plan” benefits). This listing is not exclusive.
Under 29 C.F.R. § 825.220(b), “Any violations of the Act or of these regula-
tions constitute interfering with, restraining, or denying the exercise of
rights provided by the Act.” The regulations provide several examples of
what may constitute interference.
6
29 U.S.C. § 2611(2)(A) (definition of “eligible employee”). Whether
the plaintiff is an “eligible employee” under the FMLA will seldom be in
issue at this stage of the proceedings. This paragraph should be omitted
where the employee’s eligibility is not in issue.
7
The phrase “if eligible” can be omitted if there is no dispute as to
eligibility.

254
EMPLOYMENT CLAIMS 11.19
5. because of any qualifying exigency arising out
of the fact that the employee’s spouse or a son,
daughter, or parent is on covered active duty
(or has been notified of an impending call or or-
der to covered active duty) in the Armed
Forces.8

A “serious health condition” means an illness,

injury, impairment, or physical or mental condition that
involves either (a) inpatient care in a hospital, hospice,
or residential medical care facility, or (b) continuing
treatment by a health care provider.9

A “health care provider” includes a doctor of

medicine, doctor of osteopathy, podiatrist, dentist, clini-
cal psychologist, optometrist, nurse practitioner, nurse-
midwife, or clinical social worker, so long as the
provider is licensed to practice in the state and is
performing within the scope of his or her practice.

A “qualifying exigency” arises when an employee’s

spouse, son, daughter, or parent is on covered active
duty in the Armed Forces, or has been notified of an
impending call or order to covered active duty. Catego-
ries of “qualifying exigencies” include short-notice
deployment, military events and related activities,
childcare and school activities, financial and legal ar-
rangements, counseling, rest and recuperation, post-
deployment activities, parental care, and additional
activities.10

An employee is required to give notice to the

employer indicating when [he/she] requires FMLA
leave.
8
29 U.S.C. § 2612(a)(1)(A)-(E). Again, the example may be limited to
those applicable in the particular case.
9
29 U.S.C. § 2611(11). The FMLA regulations give more detailed
definitions (for example, a definition of “inpatient care”) that may be
added to the court’s instructions. 29 C.F.R. § 825.114.
10
29 C.F.R. § 825.126(b)(1)-(9).

255
11.19 PATTERN JURY INSTRUCTIONS

(If the need for leave was foreseeable)

1. If the need for leave was foreseeable—that is,

the leave was planned or expected—the em-
ployee must give the employer at least 30 days’
notice before the leave was to begin, except that
if the date of the [treatment][birth][placement
for adoption or foster care] required the leave
to begin in less than 30 days, the employee was
required to provide such notice as was
practicable.11

OR

(If the need for leave was not foreseeable)

2. If the need for leave was not foreseeable—that

is, the leave was unplanned or unexpected—
the employee must give the employer notice as
soon as was practicable under the facts and
circumstances. “As soon as practicable” gener-
ally means that an employee must give notice
within the time prescribed by the employer’s
usual notice requirements for such leave. In
extraordinary circumstances when it is not
feasible for the employee to give such notice,
someone such as a family member should do
so.12

To give [his/her] employer proper notice of the need

for FMLA leave, an employee is not required to ex-
pressly refer to or name the FMLA. The employee need
provide the employer only enough information to put it
on notice that leave was needed because of [a serious
11
29 C.F.R. § 825.302 (notice requirements for foreseeable leave).
12
29 C.F.R. § 825.303(a).

256
EMPLOYMENT CLAIMS 11.19
health condition] [birth] [placement for adoption or fos-
ter care].13

The regulation implementing the FMLA permits

employers to condition FMLA-protected leave upon an
employee’s compliance with the employer’s usual notice
and procedural requirements. Where an employee does
not comply, and no unusual circumstances justify the
noncompliance, FMLA-protected leave may be delayed
or denied. 29 C.F.R. § 825.302(d); see also DeVoss v. Sw.
Airlines Co., 903 F.3d 487, 490 (5th Cir. 2018); Acker v.
Gen. Motors, LLC, 853 F.3d 784, 789 (5th Cir. 2017).

To succeed in this case, Plaintiff [name] must prove

by a preponderance of the evidence that [he/she] was
entitled to time off from work:

1. (Choose from one or more of the follow-

ing, as applicable): (i) because Plaintiff
[name] had a “serious health condition” that
made [him/her] unable to perform the functions
of [his/her] employment position, (ii) to care for
Plaintiff [name]’s spouse, son, daughter, or par-
ent, if that person had a “serious health condi-
tion,” (iii) because of the birth of Plaintiff
[name]’s child and to care for that child, or (iv)
because of the placement of a child with Plain-
tiff [name] for [adoption/foster care];

2. Plaintiff [name] gave Defendant [name] proper

notice of the need for time off from work for
one or more of these reasons; and

3. Defendant [name] interfered with, restrained,

or denied Plaintiff [name]’s entitlement to take
time off from work.

If the statutory requirements have been otherwise

13
Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995);
29 C.F.R. § 825.303 (notice requirements for unforeseeable leave).

257
11.19 PATTERN JURY INSTRUCTIONS

satisfied, then it does not matter whether Defendant

[name] intended to violate the FMLA. If Defendant
[name] denied Plaintiff [name] a right to which [he/she]
was entitled under the FMLA, then you should find for
Plaintiff [name] on this issue.14

14
Shirley v. Precision Castparts Corp., 726 F.3d 675, 682 (5th Cir.
2013); see also Bryant v. Tex. Dep’t of Aging & Disability Servs., 781 F.3d
764, 770 (5th Cir. 2015) (a plaintiff must at least show that the defendant
interfered with, restrained, or denied his exercise or attempt to exercise
FMLA rights, and that the violation prejudiced him); Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 89 (2002) (same).

258
EMPLOYMENT CLAIMS 11.19
11.19 Pattern Jury Question—Interference with
FMLA Leave

JURY QUESTION

Question No. 1

Did Defendant [name] deny, restrain, or interfere

with Plaintiff [name]’s right to leave under the FMLA,
or with [his/her] attempt to exercise [his/her] right to
leave under the FMLA?

Answer “Yes” or “No.”

———————————

259
11.20 PATTERN JURY INSTRUCTIONS

11.20 Interference with FMLA Benefits or Job

Restoration

A. Committee Notes

This charge is for cases in which the plaintiff al-

leges that the defendant interfered with or denied his
or her FMLA rights to maintaining employment benefits
and to job restoration after leave.

B. Charge

(For cases alleging denial of group health-

plan benefits) Plaintiff [name] claims that Defendant
[name] was required to maintain [his/her] group health-
plan benefits while [he/she] was on FMLA leave but
failed to do so.1

OR

(For cases alleging denial of job restoration)

Plaintiff [name] claims that [he/she] was entitled to be
restored to [his/her] same position of employment, or to
an equivalent position, upon [his/her] return from
FMLA leave, but Defendant [name] failed to restore
[him/her] to such a position.

Defendant [name] denies the claims and contends

that [identify contentions].

It is unlawful for an employer to interfere with, re-

strain, or deny the exercise of, or the attempt to
exercise, any right provided by the FMLA. 2 FMLA
rights include [requesting or taking leave under the
FMLA] [having the employer maintain certain employ-
ment benefits during leave] [once leave is completed,
1
See 26 U.S.C. § 5000(b)(1) (defining “group health plan”).
2
29 U.S.C. § 2615(a)(1); see also 29 C.F.R. § 825.220(b) (making it
unlawful interference, denial, or restraint of FMLA rights for an employer
to violate any FMLA statutory or regulatory provision).

260
EMPLOYMENT CLAIMS 11.20
being restored by the employer either to the position
the employee held when leave began or to a position
with equivalent benefits, pay and other terms and
conditions of employment].3

An employee is eligible to take leave if, when [his/

her] leave began [he/she]: (1) had been employed by the
employer for at least 12 months; and (2) worked at least
1,250 hours during the previous 12-month period.4

If eligible,5 an employee is entitled to take up to 12

weeks of leave in any 12-month period [specify one or
more of the following, as applicable]:

1. because of the birth of the employee’s child and

to care for that child;

2. because of the placement of a child with the

employee for adoption or foster care;

3. to care for the employee’s spouse, son, daugh-

ter, or parent, if that person had a “serious
health condition”;

4. because of a “serious health condition” that

made the employee unable to perform the func-
tions of [his/her] position; or

5. because of any qualifying exigency arising out

of the fact that the employee’s spouse or a son,
daughter, or parent is on covered active duty
(or has been notified of an impending call or or-
3
29 U.S.C. § 2612(a)(1) (entitlement to leave); 29 U.S.C. § 2614(a)(1)
(restoration to same or equivalent position); 29 U.S.C. § 2614(c)(1) (main-
tenance of “group health plan” benefits).
4
29 U.S.C. § 2611(2)(A) (definition of “eligible employee”). Whether
the plaintiff was an “eligible employee” under the FMLA will seldom be in
issue. This paragraph should be omitted if the employee’s eligibility is not
disputed.
5
The phrase “if eligible” can be omitted if there is no dispute as to
eligibility.

261
11.20 PATTERN JURY INSTRUCTIONS

der to covered active duty) in the Armed

Forces.6

While an employee is on FMLA leave, the employer

is required to maintain coverage for [him/her] under
any group health plan during the leave, under the same
conditions coverage would have been provided had the
employee not gone on leave.7

On [his/her] return from FMLA leave, an employee

is entitled to be restored to the position [he/she] held
when the leave began, or to an equivalent position. An
“equivalent position” is one that is virtually identical to
the position the employee held at the time [his/her]
leave began, with equivalent employment benefits, pay,
and other terms and conditions of employment.8 An em-
ployee is entitled to job restoration even if [he/she] was
replaced while on leave or [his/her] position was
restructured to accommodate the leave.9

An employee’s exercise of FMLA leave rights does

not entitle [him/her] to greater rights to continued
employment or employment benefits than any of [his/
her] fellow employees who did not exercise FMLA leave
rights. The employer is not required to [maintain group
health plan benefits] [restore the employee to the same
or an equivalent position] if the employer proves that
the employee’s [employment/benefits] would have ended
6
29 U.S.C. § 2612(a)(1)(A)-(E). Again, the example may be limited to
those applicable in the particular case.
7
29 U.S.C. § 2614(c)(1). If the employee does not return from FMLA
leave and the employer has maintained group health benefits during the
leave, the employer may recover the premium that it paid to maintain the
employee’s group health plan benefits, so long as the serious health condi-
tion resulting in leave was not the reason for the failure to return, or
other circumstances beyond the employee’s control were responsible for
the failure to return. 29 U.S.C. § 2614(c)(2).
8
29 U.S.C. § 2614(a)(1). The regulations further define the term
“equivalent position.” 29 C.F.R. § 825.215(a)-(f).
9
29 C.F.R. § 825.214.

262
EMPLOYMENT CLAIMS 11.20
even if [he/she] had not exercised [his/her] FMLA leave
rights.10

It does not matter whether Defendant [name]

intended to violate the FMLA. If Defendant [name]
denied Plaintiff [name] a right to which [he/she] was
entitled under the FMLA, then you should find for
Plaintiff [name] on this issue.11

To prevail, Plaintiff [name] must prove by a

preponderance of the evidence that:

(For cases in which denial of group-health-

plan benefits is alleged)

While Plaintiff [name] was on leave, Defendant

[name] failed to maintain group health-plan benefits for
Plaintiff [name] under the same conditions those
benefits would have been provided if Plaintiff [name]
had not gone on leave.

(For cases in which denial of job restoration

is alleged)

1. Plaintiff [name] sought to return to employ-

ment with Defendant [name] following FMLA
leave; and

2. Defendant [name] failed to restore Plaintiff

[name] to the same position [he/she] held at the
time FMLA leave began, or to an equivalent
position.

If Plaintiff [name] proves that Defendant [name]

10
29 C.F.R. § 825.216.
11
Shirley v. Precision Castparts Corp., 726 F.3d 675, 682 (5th Cir.
2013); see also Bryant v. Tex. Dep’t of Aging & Disability Servs., 781 F.3d
764, 770 (5th Cir. 2015) (a plaintiff must at least show that the defendant
interfered with, restrained, or denied his exercise or attempt to exercise
FMLA rights, and that the violation prejudiced him); Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 89 (2002) (same).

263
11.20 PATTERN JURY INSTRUCTIONS

failed to restore [him/her] to the same or an equivalent

employment position, Defendant [name] may neverthe-
less succeed by proving by a preponderance of the evi-
dence that Plaintiff [name]’s same job, or an equivalent
one, would no longer have been available to [him/her]
when job restoration was sought because of reasons un-
related to the leave.12

12
29 C.F.R. § 825.216. This should be omitted if the only issue involves
the failure to maintain group health-plan benefits.

264
EMPLOYMENT CLAIMS 11.20
11.20 Pattern Jury Question—Interference with
FMLA Benefits or Job Restoration

JURY QUESTION

Question No. 1

(For cases in which denial of group health-plan

benefits is alleged)

Did Defendant [name] fail or refuse to maintain

group health-plan benefits for Plaintiff [name] during
[his/her] leave under the same conditions such benefits
would have been provided if [he/she] had not gone on
leave?

Answer “Yes” or “No.”

———————————

(For cases in which denial of job restoration is al-

leged)

Did Defendant [name] fail or refuse to restore

Plaintiff [name] to [his/her] same or an equivalent job
position on [his/her] return from FMLA leave?

Answer “Yes” or “No.”

———————————

265
11.21 PATTERN JURY INSTRUCTIONS

11.21 Retaliation

A. Committee Notes

This charge is for cases in which the plaintiff al-

leges that he or she was retaliated against because he
or she exercised or sought to exercise rights under the
FMLA. The FMLA makes it unlawful for an employer
to discriminate against an individual “for opposing any
practice made unlawful” by the FMLA, 29 U.S.C.
§ 2615(a)(2), and it also makes it unlawful for any
person to discriminate against an individual “because”
the individual participated in an inquiry or hearing
under the FMLA, 29 U.S.C. § 2615(b).

If a plaintiff brings alternative claims for FMLA

interference and FMLA retaliation based on the same
adverse employment action, Pattern Jury Instructions
11.20 and 11.21 may be merged, but the causation stan-
dards should be explained if needed.1

B. Charge

Plaintiff [name] claims that [he/she] would not have

been [specify adverse employment action] by Defendant
1
It is unclear whether, in the Fifth Circuit, an FMLA retaliation
claim requires but-for causation or whether the motivating-factor stan-
dard may be used. See Ion v. Chevron USA, Inc., 731 F.3d 379, 389–90
(5th Cir. 2013) (questioning whether, after the Supreme Court decisions in
Gross (ADEA) and Nassar (Title VII retaliation), FMLA-retaliation claims
require the plaintiff to prove but-for causation but expressly declining to
decide because the parties had briefed and argued only the mixed-motive
standard. See also Wheat v. Fla. Par. Juvenile Justice Comm’n, 811 F.3d
702, 706 (5th Cir. 2016). Most district court decisions after 2015 apply the
mixed-motive standard to FMLA retaliation claims. See, e.g., Mead v.
Lattimore Materials Co., No. 3:16-cv-0791-L, 2018 WL 2984862, at *4
(N.D. Tex. June 14, 2018) (“The Fifth Circuit has not yet determined
whether the reasoning of Nassar applies to FMLA retaliation cases.”);
Cathcart v. YP Advert. & Publ’g LLC, No. 3:16-CV-2084-M, 2017 WL
4298135, at *4 (N.D. Tex. Sept. 27, 2017) (allowing a plaintiff bringing an
FMLA retaliation claim to proceed under the mixed-motive standard
because the Fifth Circuit has not held otherwise and the employer failed
to argue otherwise).

266
EMPLOYMENT CLAIMS 11.21
[name] but for [his/her] engaging in [FMLA-protected
activity].2

Defendant [name] denies the claims and contends

that [specify contentions].

It is unlawful for an employer to retaliate against

an employee for engaging in FMLA-protected activity.3

FMLA-protected activity includes, but is not limited

to, [requesting or taking leave] [having the employer
maintain certain employment benefits during leave]
[once leave is completed, seeking restoration to the po-
sition the employee held when leave began or to a posi-
tion with equivalent employment benefits, pay, and
other terms and conditions of employment].4

To prevail, Plaintiff [name] must prove by a

preponderance of the evidence that:

1. [he/she] engaged in FMLA-protected activity;

2. Defendant [name] [specify adverse employment

action] [him/her]; and

3. Defendant [name] would not have [specify

adverse employment action] Plaintiff [name]
but for [his/her] engaging in FMLA-protected
activity.5
2
In most cases, there will not be a factual dispute about whether the
plaintiff experienced an adverse employment action. If there is a dispute,
the jury charge and question should be adopted, using the definition of
“adverse employment action” at Pattern Jury Instruction 11.5.
3
29 U.S.C. § 2615(a)(1) and (2). If the employee’s eligibility for leave
or lack of proper notice to the employer is disputed, paragraphs 4 through
8 of Pattern Jury Instruction 11.19 may be used.
4
29 U.S.C. § 2612(a)(1) (entitlement to leave); 29 U.S.C. § 2614(a)(1)
(restoration to same or equivalent position); 29 U.S.C. § 2614(c)(1) (main-
tenance of group health-plan benefits).
5
If a mixed-motive standard is used, the charge could read:

267
11.21 PATTERN JURY INSTRUCTIONS

Plaintiff [name] does not have to prove that [his/

her] FMLA-protected activity is the only reason Defen-
dant [name] [specify adverse employment action]
Plaintiff [name]. But Plaintiff [name] must prove that
[he/she] would not have been [specify adverse employ-
ment action] in the absence of [his/her] FMLA-protected
activity.

If you disbelieve the reason Defendant [name] has

given for its decision, you may, but are not required to,
infer that Defendant [name] would not have [specify
adverse employment action] Plaintiff [name] but for
[his/her] FMLA-protected activity.

Plaintiff [name] claims that [his/her] engaging in [FMLA-

protected activity] was a motivating factor in Defendant [name]’s de-
cision to [specify adverse employment action] [him/her].
Defendant [name] denies the claims and contends that [specify
contentions].
It is unlawful for an employer to retaliate against an employee
for engaging in FMLA-protected activity.
FMLA-protected activity includes, but is not limited to, [request-
ing or taking leave] [having the employer maintain certain employ-
ment benefits during leave] [once leave is completed, seeking resto-
ration to the position the employee held when leave began or to a
position with equivalent employment benefits, pay, and other terms
and conditions of employment].
To prevail, Plaintiff [name] must prove by a preponderance of the
evidence that:

1. [he/she] engaged in FMLA-protected activity;

2. Defendant [name] [specify adverse employment action] [him/her];

and

3. Plaintiff [name]’s engaging in FMLA-protected activity was a

motivating factor in Defendant [name]’s decision to [specify adverse
employment action] [him/her].
Plaintiff [name] does not have to prove that [his/her] FMLA-
protected activity is the only reason Defendant [name] [specify adverse
employment action] Plaintiff [name]. But Plaintiff [name] must prove that
[he/she] would not have been [specify adverse employment action] in the
absence of [his/her] FMLA-protected activity.
If you disbelieve the reason Defendant [name] has given for its deci-
sion, you may, but are not required to, infer that Defendant [name]’s deci-
sion to [specify adverse employment action] Plaintiff [name] was motivated
by Plaintiff [name]’s FMLA-protected activity.

268
EMPLOYMENT CLAIMS 11.21
11.21 Pattern Jury Question—FMLA Retaliation

JURY QUESTION

Question No. 1

Would Defendant [name] have [specify adverse

employment action] Plaintiff [name] but for [his/her]
FMLA-protected activity?1

Answer “Yes” or “No.”

———————————

1
If a mixed-motive standard is used, the following jury question
could be used:

Question No. 1
Was Defendant [name]’s decision to [specify adverse employment
action] Plaintiff [name] motivated by Plaintiff [name]’s FMLA-protected
activity?
Answer “Yes” or “No.”
———————————

269
11.22 PATTERN JURY INSTRUCTIONS

11.22 FMLA Damages—Lost Wages

A. Committee Notes

The following charge is for use in FMLA cases in

which the plaintiff has experienced actual damages in
the form of lost wages, salary, employment benefits, or
other compensation, because of the FMLA violation.

A prevailing plaintiff under the FMLA is entitled

to damages under 29 U.S.C. § 2617(a). The prevailing
plaintiff can recover actual damages equal to the
amount of “any wages, salary, employment benefits, or
other compensation denied or lost” by reason of the
employer’s violation of the FMLA. § 2617(a)(1)(A)(i)(I).
If the prevailing plaintiff incurred no such damages,
the plaintiff can recover any actual monetary losses
sustained as a direct result of the employer’s violation
of the FMLA, such as the cost of providing care to an
injured family member. § 2617(a)(1)(A)(i)(II). That
alternative measure of damages is limited to a sum
equal to 12 weeks of the plaintiff’s pay, or in a case
involving leave to care for a service member under
§ 2612(a)(3), 26 weeks of the plaintiff’s pay.
§ 2617(a)(1)(A)(i)(II).

The FMLA does not allow recovery for mental

distress or the loss of job security. In addition, punitive
damages are unavailable under the FMLA.

Liquidated damages equal to the amount of actual

damages and interest must be awarded unless the
employer “proves to the satisfaction of the court” that
the acts or omissions giving rise to the violation were in
good faith and that the employer had reasonable
grounds for believing that such acts or omissions did
not violate the FMLA, in which case the court may
award no liquidated damages or award an amount not
to exceed the amount allowable under the statute. 29
U.S.C. § 2617(a)(1)(A)(iii). Whether to reduce a liqui-
270
EMPLOYMENT CLAIMS 11.22
dated damages award is a question for the judge, not
the jury.

The FMLA has been interpreted to authorize jury

trials. See Frizzell v. Sw. Motor Freight, 154 F.3d 641,
644 (6th Cir. 1998) (holding that a request for damages
under FMLA triggers a statutory right to a jury trial);
accord Wages v. Stuart Mgmt. Corp., 798 F.3d 675, 681
(8th Cir. 2015). A jury trial is appropriate to decide
back pay, but equitable issues such as reinstatement
and front pay should be decided by the court. See 29
U.S.C. § 2617(a)(1)(B) (permitting a prevailing em-
ployee to recover “such equitable relief as may be ap-
propriate, including employment, reinstatement, and
promotion”).

B. Charge

If you found that Defendant [name] violated the

FMLA, then you must determine whether those viola-
tions caused Plaintiff [name] damages. If so, you must
determine the amount. You should not conclude from
the fact that I am instructing you on damages that I
have any opinion as to whether Plaintiff [name] has
proved liability.

Plaintiff [name] must prove [his/her] damages by a

preponderance of the evidence. Your award must be
based on evidence and not on speculation or guesswork.
On the other hand, Plaintiff [name] need not prove the
amount of [his/her] losses with mathematical precision,
but only with as much certainty and accuracy as the
circumstances permit.1

You should consider the following elements of dam-

ages and no others: any wages, salary, employment
benefits, or other compensation denied or lost because
of Defendant [name]’s violation of the FMLA, if any.
1
Lowe v. Southmark Corp., 998 F.2d 335, 337 (5th Cir. 1993).

271
11.22 PATTERN JURY INSTRUCTIONS

Wages, salary, and benefits include the amounts

the evidence shows Plaintiff [name] would have earned
had [he/she] [remained an employee of Defendant
[name] [been promoted] [not been demoted] from [date]
to the date of your verdict, including benefits such as
life and health insurance,2 stock options, or contribu-
tions to retirement, minus the amounts of earnings and
benefits, if any, Defendant [name] proves by a prepon-
derance of the evidence Plaintiff [name] received from
employment during that time.3

(For cases in which failure to mitigate is as-

serted)4 Defendant [name] asserts that Plaintiff [name]
failed to mitigate [his/her] damages. To prevail on this
defense, Defendant [name] must show, by a preponder-
ance of the evidence: (a) that there was “substantially
equivalent employment” available; (b) Plaintiff [name]
failed to use reasonable diligence in seeking those posi-
tions; and (c) the amount by which Plaintiff [name]’s
damages were increased by [his/her] failure to take such
reasonable actions.5
2
Other elements of compensatory damages and consequential dam-
ages are not recoverable. See Nero v. Indus. Molding, 167 F.3d 921, at
922–32 (5th Cir. 1999). “[T]he correct measure of damages for lost insur-
ance benefits in FMLA cases is either actual replacement cost for the in-
surance, or expenses actually incurred that would have been covered
under a former insurance plan. The lost ‘value’ of benefits, absent actual
costs to the plaintiff, is not recoverable.” Lubke v. City of Arlington, 455
F.3d 489, 499 (5th Cir. 2006).
3
Jurgens v. EEOC, 903 F.2d 386, 390–91 (5th Cir. 1990) (quoting
Marks v. Prattco, 633 F.2d 1122, 1125 (5th Cir. 1981)).
4
This charge may be used in conjunction with Pattern Jury Instruc-
tion 15.5.
5
Ellerbrook v. City of Lubbock, Tex., 465 F. App’x. 324, 337 (5th Cir.
2012); Vaughn v. Sabine Cty., 104 F. App’x 980, 984 (5th Cir. 2004); 50-Off
Stores, Inc. v. Banques Paribas (Suisse), S.A., 180 F.3d 247, 258 (5th Cir.
1999). District courts have given juries the same instruction that the Fifth
Circuit gives for Title VII and ADEA claims, for the “failure-to-mitigate”
defense under the FMLA. See, e.g., Firth v. Don McGrill of W. Hous., Ltd.,
No. H-04-0659, 2006 WL 846377, at *3 (S.D. Tex. Mar. 28, 2006), aff’d by
Firth v. McGill, 233 F. App’x 346 (5th Cir. 2007) (per curiam); Newcomb v.
Corinth Sch. Dist., No. 1:12-cv-204-SA-DAS, at *10 (N.D. Miss. Mar. 31,
2015) (under the FMLA, a defendant may invoke “failure to mitigate” as

272
EMPLOYMENT CLAIMS 11.22
“Substantially equivalent employment” means a
job that has virtually identical promotional opportuni-
ties, compensation, job responsibilities, working condi-
tions, and status as the job Plaintiff [name] [lost] [was
denied]. Plaintiff [name] does not have to accept a job
that is dissimilar to the one [he/she] [lost] [was denied],
one that would be a demotion, or one that would be
demeaning.6 The reasonableness of Plaintiff [name]’s
diligence should be evaluated in light of [his/her] indi-
vidual characteristics and the job market.7

an affirmative defense) (citing West v. Nabors Drilling USA, Inc., 330 F.3d
379, 393 (5th Cir. 2003) (Title VII and ADEA case)). The Seventh Circuit
has imposed the “familiar common law duty of mitigating damages” to
FMLA claims. Franzen v. Ellis Corp., 543 F.3d 420, 429–30 (7th Cir. 2008).
Earlier versions of this instruction included the following language:
“If Defendant proves that Plaintiff has not made reasonable efforts to
obtain work, Defendant does not have to establish the availability of
substantially equivalent employment.” Authority exists for this instruction.
See Sellers v. Dellgado Coll., 902 F.2d 1189, 1193 (5th Cir. 1990); see also
West v. Nabors Drilling USA, Inc., 330 F.3d 379, 393 (5th Cir. 2003). But
recent district court cases have observed that Sellers conflicts with the
previously decided Sparks v. Griffin, 460 F.2d 433, 443 (5th Cir. 1972),
which required that defendant prove that “there were jobs available which
appellant could have discovered and for which she was qualified.” See,
e.g., Garcia v. Harris Cty., No. H-16-2134, 2019 WL 132382, at *2 (S.D.
Tex. Jan. 8, 2019) (“Courts have specifically acknowledged that, in the
failure to mitigate context, the Sparks decision controls over West and
other later conflicting decisions.”); Newcomb v. Corinth Sch. Dist., No.
1:12-CV-0204-SA-DAS, 2015 WL 1505839, at *7 (N.D. Miss. Mar. 31, 2015)
(applying Sparks under rule of orderliness); Buckingham v. Booz Allen
Hamilton, Inc., 64 F. Supp. 3d 981, 984 (S.D. Tex. 2014) (same). But see
E.E.O.C. v. IESI Louisiana Corp., 720 F. Supp. 2d 750, 755 (W.D. La.
2010) (recognizing the Sparks “resurgence” but opting to follow the “newer”
standard). Given this history, the Committee concludes that this language
should not remain in a pattern instruction but that courts and counsel
should be aware of the split.
6
Sellers, 902 F.2d at 1193.
7
Sellers, 902 F.2d at 1193

273
11.22 PATTERN JURY INSTRUCTIONS

11.22 Pattern Jury Question—FMLA Damages,

Lost Wages

JURY QUESTION

Question No. 1

What sum of money, if paid now in cash, would

fairly and reasonably compensate Plaintiff [name] for
the damages, if any, you have found Defendant [name]
caused Plaintiff [name]?

Answer in dollars and cents for the following items

and no others:

Wages, salary, employment benefits, or other

compensation denied or lost from [date] to [date]:

$———————————

Question No. 2

What sum of money, if paid now in cash, is the

amount by which Plaintiff [name]’s damages, if any,
could have been reduced through [his/her] reasonable
diligence in seeking, obtaining, and maintaining
substantially equivalent employment after the date of
[specify action alleged to be FMLA violation causing
lost wages].

Answer in dollars and cents:

$———————————

274
EMPLOYMENT CLAIMS 11.23
11.23 FMLA Damages—Losses Other Than
Wages

A. Committee Notes

This charge is for an FMLA case in which there are

no actual wage or benefit losses and no other compensa-
tion lost or denied. This instruction should be used
when an employee is denied FMLA leave and is required
to spend money for an alternative to the leave he or she
claims was required under the FMLA.1

B. Charge

If you found that Defendant [name] violated the

FMLA, then you must determine whether [he/she/it]
caused Plaintiff [name] damages and, if so, the amount,
if any, of those damages.

Plaintiff [name] must prove [his/her] damages by a

preponderance of the evidence. Your award must be
based on evidence and not speculation or guesswork.
On the other hand, Plaintiff [name] need not prove the
amount of [his/her] losses with mathematical precision,
but only with as much definitiveness and accuracy as
the circumstances permit.2

You may award as damages any actual monetary

losses Plaintiff [name] sustained as a direct result of
Defendant [name]’s violation of the FMLA, such as the
cost of providing care.

1
29 U.S.C. § 2617(a)(1)(A)(ii).
2
Lowe, 998 F.2d at 337.

275
11.23 PATTERN JURY INSTRUCTIONS

11.23 Pattern Jury Question—FMLA Damages,

Losses Other Than Wages

JURY QUESTION

Question No. 1

What sum of money, if paid now in cash, would

fairly and reasonably compensate Plaintiff [name] for
the damages, if any, you have found Defendant [name]
caused [him/her]?

Answer in dollars and cents:

$———————————

276
EMPLOYMENT CLAIMS 11.24
11.24 Fair Labor Standards Act (FLSA) (29
U.S.C. §§ 201, et seq.)

A. Committee Notes

This charge is for cases in which the plaintiff al-

leges a violation of the minimum-wage or overtime-pay
requirements of the FLSA.

1. Elements of an FLSA Case

To prevail in a FLSA action, the plaintiff must

prove: (1) an employment relationship with the defen-
dant; (2) coverage under the FLSA; and (3) a violation
of the FLSA.

The FLSA applies only if the plaintiff was an em-

ployee of the defendant. If this issue is disputed, the
instructions and jury questions should be adapted
accordingly. If there is a dispute about whether the
plaintiff is an employee or an independent contractor,
see Pattern Jury Instruction 11.26. If there is a dispute
about whether there were joint employers or a single
employer, see Pattern Jury Instruction 11.27.

The plaintiff-employee must also prove FLSA cover-

age by proving either that he or she is individually
covered or that his or her employer is covered as an
enterprise. Martin v. Bedell, 955 F.2d 1029, 1032 (5th
Cir. 1992). To prove individual coverage, the employee
must establish that in working for the defendant, he or
she was “engaged in commerce or the production of
goods for commerce.” 29 U.S.C. §§ 206(a), 207(a)(1),
212(c). To prove enterprise coverage, the employee must
establish that he or she was “employed by an enterprise
engaged in commerce that had annual gross sales of at
least $500,000.00.” 29 U.S.C. § 203(s)(1). For a discus-
sion of these elements, see Brock v. Cruz, 357 F. Supp.
3d 581, 586–88 (S.D. Tex. Jan. 2019) (“enterprise”); and
Williams v. Henagan, 595 F.3d 610, 621 (5th Cir. 2010)
(“engagement in commerce”).
277
11.24 PATTERN JURY INSTRUCTIONS

2. Common Legal Issues

Recurring issues in FLSA cases include the clas-

sification of employees as exempt or nonexempt, record
keeping, the number of hours worked, and limitations.

a. Classification Issues: Exempt Status

The most common exemptions from the overtime-

pay requirement are for employees in a “bona fide exec-
utive, administrative, or professional capacity.” 29
U.S.C. § 213(a)(1); 29 C.F.R. § 541.0; see also Belt v.
EmCare, Inc., 444 F.3d 403, 407 (5th Cir. 2006). If the
case involves a dispute about whether an employee is
exempt from the FLSA’s overtime requirement, the jury
should be instructed on the elements of the claimed
exemption. The elements of the exemptions are at 29
C.F.R. § 541.1 et seq. The employer has the burden of
proving an overtime-pay exemption. Olibas v. Barclay,
838 F.3d 442, 448 (5th Cir. 2016).

In a misclassification case, whether an employee is

nonexempt and eligible for overtime is a fact question.
Once the fact finder has determined that the employer
was misclassified and is due overtime pay, the trial
court must determine the regular rate of pay and
overtime premium, which are questions of law.1 Dis-
1
Black v. SettlePou P.C., 732 F.3d 492, 496 (5th Cir. 2013); Ransom v.
M. Patel Enters., Inc., 734 F.3d 377 (5th Cir. 2013); see also Singer v. City
of Waco, Tex., 324 F.3d 813, 823 (5th Cir. 2003) (reviewing de novo the
district court’s determination of the regular rate of pay under the FLSA).
An hourly employee’s “regular rate” for the purpose of determining
proper overtime is determined by dividing the employee’s “total remunera-
tion for employment . . . in any workweek by the total number of hours
actually worked by him in that workweek for which such compensation
was paid.” 29 C.F.R. § 778.109. The regular rate includes all of the em-
ployee’s compensation except for eight specific types of payments set out
in 29 U.S.C. § 207(e).
When an employee is compensated “solely on a weekly salary basis,
the regular hourly rate of pay, on which time and a half must be paid, is
computed by dividing the salary by the number of hours which the salary
is intended to compensate.” 29 C.F.R. § 778.113(a); Singer, 324 F.3d at

278
EMPLOYMENT CLAIMS 11.24
putes over the number of hours worked and damages
are for the jury to decide.

b. Recordkeeping

The FLSA requires employers to “make, keep and

preserve records” of an employee’s hours. 29 U.S.C.
§ 211(c). The employee has the burden of proving the
hours worked for which he or she was not properly
compensated. Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 686–87 (1946), superseded by statute on other
grounds, 29 U.S.C. § 251. When an employer’s records
are “inaccurate or inadequate,” the employee may
satisfy the burden by proving that he or she performed
work that was improperly compensated and producing
“sufficient evidence to show the amount and extent of
that work as a matter of just and reasonable inference.”
Anderson, 328 U.S. at 687. “The burden then shifts to
the employer to come forward with evidence of the
precise amount of work performed or with evidence to
negate the reasonableness of the inference to be drawn
from the employee’s evidence.” Anderson, 328 U.S. at
687–88; see also Johnson v. Heckmann Waster Res.
(CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014) (citing
Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 441
(5th Cir. 2005)).

c. Hours Worked

The FLSA requires that employees be paid for all

hours worked. “Work” is broadly defined as ‘‘ ‘physical

824. For overtime claims involving an employee who is paid a constant

salary for a specific number of hours, the instruction should be based upon
29 C.F.R. § 778.113(a). For overtime claims involving an employee who is
paid a constant weekly salary for fluctuating hours, it may be necessary to
instruct on the “fluctuating workweek method.” See Hills v. Entergy Opera-
tions, Inc., 866 F.3d 610, 614–15 (5th Cir. 2017) (whether an employer and
an employee agreed to a fixed weekly wage for fluctuating hours is a ques-
tion of fact, and the employee has the burden to show that the fluctuating-
workweek method is inapplicable) (citation omitted); Lamonica v. Safe
Hurricane Shutters, Inc., 711 F.3d 1299, 1310–11 (11th Cir. 2013); see also
29 C.F.R. § 778.114 (explaining how to use the fluctuating workweek
method).

279
11.24 PATTERN JURY INSTRUCTIONS

or mental exertion (whether burdensome or not) con-

trolled or required by the employer and pursued neces-
sarily and primarily for the benefit of the employer and
his business.’ ” Bridges v. Empire Scaffold, LLC, 875
F.3d 222, 225–26 (5th Cir. 2017) (citing Tenn. Coal,
Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590,
598 (1944); Integrity Staffing Sols., Inc. v. Busk, 135 S.
Ct. 513, 516–17 (2014); and IBP, Inc. v. Alvarez, 546
U.S. 21, 29–30 (2005)). Typical issues in “off-the clock”
cases include whether unpaid and usually unrecorded
hours for preparatory and concluding activities (“don-
ning and doffing”), travel, waiting, and rest or meal
periods are compensable.

To recover for overtime hours the employee claims

he or she worked without proper compensation, the em-
ployee must demonstrate that the employer “had knowl-
edge, actual or constructive, that he was working”
overtime. Fairchild v. All Am. Check Cashing, Inc., 815
F.3d 959, 964 (5th Cir. 2016) (quoting Newton v. City of
Henderson, 47 F.3d 746, 748 (5th Cir. 1995)). Construc-
tive knowledge exists if an employer “exercising reason-
able diligence” would become aware that an employee
is working overtime. Brennan v. Gen. Motors Accep-
tance Corp., 482 F.2d 825, 827 (5th Cir. 1973). But if
the “employee fails to notify the employer or deliberately
prevents the employer from acquiring knowledge of the
overtime work, the employer’s failure to pay for the
overtime hours is not a violation of § 207.” Newton, 47
F.3d at 748.

d. Limitations

The statute of limitations for an unpaid-overtime

FLSA claim is generally two years. 29 U.S.C. § 255(a).
The limitations period is extended to three years for
willful violations. 29 U.S.C. § 255(a). To prove willful-
ness and obtain the benefit of the three-year limitations
period, an employee must establish that the employer
“either knew or showed reckless disregard as to whether
its conduct was prohibited by the [FLSA].” Cox v. Brook-
280
EMPLOYMENT CLAIMS 11.24
shire Grocery Co., 919 F.2d 354, 356 (5th Cir. 1990) (cit-
ing McLaughlin v. Richland Shoe Co., 486 U.S. 128,
133 (1988)).

B. Charge

Plaintiff [name] claims that Defendant [name] did

not pay Plaintiff [name] the [minimum wage] [overtime
pay] required by the federal Fair Labor Standards Act,
also known as the FLSA.

Defendant [name] denies Plaintiff [name]’s claims

and contends [specify contentions].

It is unlawful for an employer to require an em-

ployee covered by the FLSA to work [for less than min-
imum wage] [more than 40 hours in a workweek
without paying overtime].

To succeed on [his/her] claim, Plaintiff [name] must

prove each of the following facts by a preponderance of
the evidence:

1. Plaintiff [name] was an employee of Defendant

[name] during the relevant period;

2. Plaintiff [name] was engaged in commerce or

in the production of goods for commerce or
employed by an enterprise engaged in com-
merce or in the production of goods for com-
merce that had gross annual sales of at least
$500,000.00 for [specify year]; and

3. Defendant [name] failed to pay Plaintiff [name]

the [minimum wage] [overtime pay] required
by law.

Plaintiff [name] must prove by a preponderance of

the evidence that [he/she] was an employee [engaged in
commerce or in the production of goods for commerce]
281
11.24 PATTERN JURY INSTRUCTIONS

[employed by an enterprise engaged in commerce or in

the production of goods for commerce].2

The term “commerce” has a very broad meaning. It

includes any trade, transportation, transmission, or
communication among the several states, or between
any state and any place outside that state. Plaintiff
[name] was engaged in the “production of goods” if [he/
she] was employed in producing, manufacturing, min-
ing, handling, or transporting goods, or in any other
manner worked on goods or any closely related process
or occupation directly essential to the production of
goods. [An “enterprise engaged in commerce or the pro-
duction of goods for commerce” means a business that
has employees engaged in commerce or the production
of commercial goods for commerce and has annual gross
sales of at least $500,000.00.]

(For cases involving a minimum-wage claim)

The minimum wage required by the FLSA during

the period involved in this case was $[minimum wage]
per hour. In determining whether an employer has paid
the minimum wage, it is entitled to a credit for the rea-
sonable costs of furnishing certain noncash items to
Plaintiff [name] [unless those costs are excluded from
Plaintiff [name]’s wages under the terms of a union
contract that applies to Plaintiff [name]], such as meals
and lodging for the employee’s benefit, if the employee
voluntarily accepts them.

(For cases involving an overtime claim)

The FLSA requires an employer to pay an employee

at least one-and-one-half times the employee’s “regular
rate” for time worked over 40 hours in a workweek. A
2
If there is no dispute about whether the plaintiff was an employee
engaged in commerce or employed by an enterprise engaged in commerce,
this paragraph and the next one need not be submitted.

282
EMPLOYMENT CLAIMS 11.24
“workweek” is a regularly recurring period of seven
days or 168 hours. The phrase “hours worked” includes
all time spent by an employee that was primarily for
the benefit of the employer or the employer’s business.
If an employee works more than 40 hours in one
workweek, the employer must pay the employee the
overtime rate of 1.5 times the regular rate for the time
[he/she] worked after the first 40 hours. This is com-
monly known as “time-and-a-half pay” for overtime
work.

To calculate how much overtime pay Plaintiff

[name] earned in a particular week, multiply [his/her]
regular rate of pay by one-and-one-half times the regu-
lar rate for all hours worked over 40 in that week.

(For cases involving issues of inadequate re-

cords of hours worked)

The law requires an employer to keep records of

how many hours its employees work and the amount
they are paid. In this case, Plaintiff [name] claims that
Defendant [name] failed to keep and maintain adequate
records of [his/her] hours and pay. Plaintiff [name] also
claims that Defendant [name]’s failure to keep and
maintain adequate records has made it difficult for
Plaintiff [name] to prove the exact amount of [his/her]
claim.

If you find that Defendant [name] failed to keep

adequate time and pay records for Plaintiff [name] and
that Plaintiff [name] performed work for which [he/she]
should have been paid, Plaintiff [name] may recover a
reasonable estimation of the amount of [his/her]
damages. But to recover this amount, Plaintiff [name]
must prove by a preponderance of the evidence a rea-
sonable estimate of the amount and extent of the work
for which [he/she] seeks pay.

(For cases involving a contention that the

283
11.24 PATTERN JURY INSTRUCTIONS

employer did not know or have reason to

believe that the employee worked more than
40 hours in a workweek)

To prevail on a claim for overtime under the Fair

Labor Standards Act, a plaintiff must prove, by a
preponderance of the evidence, that the employer failed
to pay the plaintiff overtime for all hours worked in
excess of 40 in one or more workweeks. A “workweek”
is a regularly recurring period of seven days or 168
hours. The phrase “hours worked” includes all time
spent by an employee that was primarily for the benefit
of the employer or the employer’s business. An employ-
ee’s time spent primarily for the benefit of the employer
or the employer’s business is “hours worked” only if the
employer knew or had reason to believe that the em-
ployee was doing the work. [When an employer has a
policy that an employee is not to work overtime without
prior authorization, an employee cannot perform
overtime work without the employer’s knowledge and
contrary to its instructions and then assert a right to be
paid.] At the same time, an employer who knows that
an employee is working overtime and does not want the
work to be done must make reasonable efforts to
prevent it. If an employee in fact does overtime work
and the employer knows or has reason to believe it, the
employer cannot stand idly by and allow the employee
to perform the work without proper compensation, even
if the employee did not make a claim for the compensa-
tion at the time. An employer has the right to require
an employee to adhere to its procedures for claiming
overtime and an employee has a duty to notify his
employer when [he/she] is working extra hours. If the
employee fails to notify the employer of the overtime
work or deliberately prevents the employer from acquir-
ing knowledge of the overtime work, the employer’s
failure to pay for the overtime hours is not a violation
of the statute. If the employer neither knew nor had
reason to believe that overtime work was being per-
formed, the time does not constitute “hours worked.”
284
EMPLOYMENT CLAIMS 11.24
(For cases involving the defendant’s conten-
tion that the plaintiff was exempt from the
FLSA)

In this case, Defendant [name] claims that it is

exempt from the FLSA’s overtime provisions. To estab-
lish that it is exempt, Defendant [name] must prove
each of the following facts by a preponderance of the
evidence: [specify essential elements of the claimed
exemption].3

3
The exemption elements set out in 29 C.F.R. § 541 may be used as a
guideline.

285
11.24 PATTERN JURY INSTRUCTIONS

11.24 Pattern Jury Questions, FLSA—Failure to

Pay Minimum Wage or Overtime

JURY QUESTIONS

Question No. 1

Has Plaintiff [name] proved that [he/she] was an

employee of Defendant [name] during the relevant pe-
riod?

Answer “Yes” or “No.”

———————————

If your answer is “Yes,” answer the next question. If

your answer is “No,” do not answer the next question.

Question No. 2

Has Plaintiff [name] proved that [he/she] was

engaged in commerce or in the production of goods for
commerce or employed by an enterprise engaged in com-
merce or in the production of commercial goods?1

Answer “Yes” or “No.”

———————————

If your answer is “Yes,” answer the next question. If

your answer is “No,” do not answer the next question.
1
If there is a dispute about whether the employer had annual gross
sales of at least $500,000.00, the jury question should be adapted
accordingly. If there is a dispute about employee/independent contractor
status or about joint employers, see Pattern Jury Instructions 11.26 and
11.27.

286
EMPLOYMENT CLAIMS 11.24

Question No. 3

Has Plaintiff [name] proved that Defendant [name]

failed to pay [him/her] the [minimum wage] [overtime
pay] required by law?

Answer “Yes” or “No.”

———————————
If your answer is “Yes,” answer the next question. If
your answer is “No,” do not answer the next question.

(For cases in which the defendant contends that

the plaintiff was exempt from the FLSA’s overtime
requirement)

Question No. 4

Has Defendant [name] proved that Plaintiff [name]

was exempt from the overtime-pay requirement as an
[administrative] [executive] [specify other] employee?

Answer “Yes” or “No.”

———————————

If your answer is “Yes,” answer the next question. If

your answer is “No,” do not answer the next question.

(For cases involving allegations of willful viola-

tion)

Question No. 5

Has Plaintiff [name] proved that Defendant [name]

287
11.24 PATTERN JURY INSTRUCTIONS

knew that its conduct was prohibited by the FLSA or

showed reckless disregard for whether the FLSA
prohibited its conduct?

Answer “Yes” or “No.”

———————————

288
EMPLOYMENT CLAIMS 11.25
11.25 FLSA Damages

A. Committee Notes

This charge is for use in FLSA cases involving an

alleged failure to pay overtime or minimum wage.

The FLSA provides for liquidated damages. The

statute states that such damages are to be paid on a
finding of an FLSA § 206 or § 207 violation unless the
“employer shows to the satisfaction of the court that
the act or omission giving rise to such action was in
good faith and that he had reasonable grounds for
believing that his act or omission was not a violation of
the Fair Labor Standards Act.” 29 U.S.C. §§ 216(b),
260. If the employer makes this showing, “the court
may, in its sound discretion, award no liquidated dam-
ages or award any amount thereof not to exceed the
amount specified in section 216” of the FLSA. 29 U.S.C.
§ 260. This is a question for the court to determine, not
the jury. The jury answers the willfulness question to
determine the statute of limitations, not to determine
willfulness for the purpose of deciding liquidated dam-
ages issues. Black v. SettlePou, P.C., 732 F.3d 492, 501
(5th Cir. 2013) (citing Singer v. City of Waco, 324 F.3d
813, 822–23 (5th Cir. 2003)); see also Mireles v. Frio
Foods, Inc., 899 F.2d 1407, 1414–15 (5th Cir. 1990).

When the jury finds that an employer has violated

the FLSA and assesses compensatory damages, the
district court generally must add liquidated damages in
an equal amount. 29 U.S.C. § 216(b) (“Any employer
who violates the provisions of . . . section 207 of this
title shall be liable to the employee or employees af-
fected in the amount of . . . their unpaid overtime
compensation . . . and in an additional equal amount
as liquidated damages.”); Ransom v. M. Patel Enters.,
Inc., 734 F.3d 377, 387 & n.16 (5th Cir. 2013) (citing
Singer, 324 F.3d at 822–23); see also Black, 732 F.3d at
501. The district court has discretion to reduce or deny
liquidated damages if the employer ‘‘ ‘acted in good faith
289
11.25 PATTERN JURY INSTRUCTIONS

and had reasonable grounds to believe that its actions

complied with the FLSA.’ ” Black, 732 F.3d at 501 (quot-
ing Singer, 324 F.3d at 822–23); see also 29 U.S.C.
§ 260. A district court must find that an employer acted
reasonably and in good faith in violating the FLSA
before it may award less than the full amount of liqui-
dated damages. See Black, 732 F.3d at 501. If the jury
finds that the employer acted willfully, then the court
cannot find that the employer acted in good faith, and
the court must award liquidated damages. Singer, 324
F.3d at 823.

B. Charge

If you find that Defendant [name] violated the

FLSA, then you must determine the amount of any
damages. You should not conclude from the fact that I
am instructing you on damages that I have any opinion
as to whether Plaintiff [name] has proved liability.

The amount of damages is the difference between

the amount Plaintiff [name] should have been paid and
the amount [he/she] was actually paid. Plaintiff [name]
is entitled to recover lost wages for the two years before
[he/she] filed this lawsuit, unless you find that Defen-
dant [name] either knew or showed reckless disregard
for whether the FLSA prohibited its conduct. If you find
that Defendant [name] knew or showed reckless disre-
gard for whether the FLSA prohibited its conduct, then
Plaintiff [name] is entitled to recover lost wages for
three years before the date [he/she] filed this lawsuit.
Plaintiff [name] filed this lawsuit on —————.

290
EMPLOYMENT CLAIMS 11.25
11.25 Pattern Jury Questions, FLSA Damages
JURY QUESTIONS

Question No. 1

Has Plaintiff [name] proved that [he/she] is entitled

to recover damages under the FLSA?

Answer “Yes” or “No.”

———————————

If your answer is “Yes,” answer the next question. If

your answer is “No,” do not answer the next question.

Question No. 2

Has Plaintiff [name] proved that Defendant either

knew its conduct was prohibited by the FLSA or showed
reckless disregard for whether its conduct was prohib-
ited by the FLSA?

Answer “Yes” or “No.”

———————————

If your answer is “Yes,” you should award damages for

the three-year period from ————— to —————. If your
answer is “No,” you should award damages for the two-
year period from ————— to —————.

Question No. 3

What sum of money would fairly and reasonably

compensate Plaintiff [name] for the damages, if any,
291
11.25 PATTERN JURY INSTRUCTIONS

you have found Defendant [name] caused Plaintiff

[name]? Answer in dollars and cents for the following
items and no other:

[specify formula].1

$———————————

1
If there is a dispute about whether certain amounts should be
included in the regular rate of pay and overtime rate that are used to
compute FLSA damages, the jury questions should be adapted accord-
ingly, clarifying the underlying fact disputes that the jury is asked to
decide, such as what statutory exclusions may apply.

292
EMPLOYMENT CLAIMS 11.26
11.26 FLSA—Employee or Independent
Contractor

A. Committee Notes

This charge is for FLSA cases in which there are

disputes about whether the plaintiff is an employee or
an independent contractor. Such disputes are usually
questions of fact for the jury. See Campbell v. Keystone
Aerial Surveys, Inc., 138 F.3d 996, 1006 (5th Cir. 1998)
(Texas law); McKee v. Brimmer, 39 F.3d 94, 97 (5th Cir.
1994) (Mississippi law); Brown v. Cities Serv. Oil Co.,
733 F.2d 1156, 1161 (5th Cir. 1984) (Louisiana law).

The central issue in determining employee/

independent contractor status is “whether the alleged
employee so economically depends upon the business to
which he renders his services, such that the individual,
as a matter of economic reality, is not in business for
himself.” Hobbs v. Petroplex Pipe & Constr., Inc., 946
F.3d 824, 829 (5th Cir. 2020) (quoting Thibault v.
Bellsouth Telecomms., Inc., 612 F.3d 843, 845 (5th Cir.
2010)). Courts use five “non-exhaustive” “economic real-
ity” factors to guide the inquiry: “(1) the degree of
control exercised by the alleged employer; (2) the extent
of the relative investments of the worker and the al-
leged employer; (3) the degree to which the worker’s op-
portunity for profit or loss is determined by the alleged
employer; (4) the skill and initiative required in
performing the job; and (5) the permanency of the
relationship. Id. (quoting Hopkins v. Cornerstone Am.,
545 F.3d 338, 343 (5th Cir. 2008)). No single factor is
determinative.1 Id. “Rather, each factor is a tool used to
gauge the economic dependence of the alleged employee,
1
The Fifth Circuit has adopted a “hybrid economic realities/common
law control test” to determine employee/independent contractor status
under Title VII. See Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d
431, 434 (5th Cir. 2013); Muhammad v. Dall. Cty. Cmty. Supervision &
Corr. Dep’t, 479 F.3d 377, 380 (5th Cir. 2007). The “right to control [the]
employee’s conduct” is the most important component of the hybrid test.
Muhammad, 479 F.3d at 480; see also Juino, 717 F.3d at 434 (courts
“should emphasize” the “common law control portion of the test” “over the

293
11.26 PATTERN JURY INSTRUCTIONS

and each must be applied with this ultimate concept in

mind.” Id.

B. Charge

It is not always clear whether the law considers

someone an “employee,” and it is not always clear who
the law considers someone’s “employer.” Some people
perform services for others while remaining self-
employed as independent contractors.

In this case, you must decide whether Plaintiff

[name] was an employee of Defendant [name] or an in-
dependent contractor. You should answer this question
in light of the economic realities of the entire relation-
ship between the parties and in light of whether
Plaintiff [name] economically depended on Defendant
[name]. There are a number of factors you must
consider, based on all the evidence in the case. The fac-
tors are as follows:

1. How much control Defendant [name] has over

Plaintiff [name]’s work. In an employer/
employee relationship, the employer has the
right to control the employee’s work, to set the
means and manner in which the work is done,
and to set the hours of work. In contrast, an in-
dependent contractor generally must accom-
plish a certain work assignment within a
desired time, but the details, means, and man-
ner by which the contractor completes that as-
signment are determined by the independent
contractor, normally using special skills neces-
sary to perform that kind of work.

economic realities portion”). The “hybrid” test results “in a narrower defi-
nition of employee than under a true economic-realities test.” Hopkins,
545 F.3d at 347. The Fifth Circuit explained in Hopkins that “it is legally
possible to be an employee for purposes of the FLSA and an independent
contractor under most other statutes.” Id. (citing Nationwide Mut. Ins. Co.
v. Darden, 503 U.S. 318, 326 (1992)).

294
EMPLOYMENT CLAIMS 11.26
2. The relative investments made by Plaintiff
[name] compared to Defendant [name]. An in-
dependent contractor generally makes a greater
investment in his or her work, but an employ-
ee’s investment is usually less than the employ-
er’s investment. For example, an independent
contractor usually provides the tools, equip-
ment, and supplies necessary to do the job, but
an employee usually does not.

3. How much risk or opportunity Plaintiff [name]

has. An independent contractor is generally one
who has the opportunity to make a profit or
faces a risk of taking a loss. But an employee is
generally compensated at a predetermined rate,
has no risk of loss, and has social security taxes
paid by the employer.

4. The amount of skill and initiative required of

Plaintiff [name]. An independent contractor
usually has a specialized skill and demon-
strated initiative compared to an employee. An
independent contractor may have more discre-
tion over his or her daily tasks, and may have
to take initiative to find consistent work.

5. The permanency of the relationship between

Plaintiff [name] and Defendant [name]. This
includes whether Plaintiff [name] worked
exclusively for Defendant [name], the total
length of the relationship, and whether the
work was done on a project-by-project basis. An
employee typically works exclusively for one
employer, has a long-term relationship, and
does not work on a project-by-project basis,
while an independent contractor does.

You should consider all the circumstances sur-

rounding the work relationship, and no single factor
determines the outcome. An individual who performs
295
11.26 PATTERN JURY INSTRUCTIONS

services for pay may be either an employee or an inde-

pendent contractor but cannot be both at the same time.

296
EMPLOYMENT CLAIMS 11.26
11.26 Pattern Jury Question, FLSA—Employee
or Independent Contractor

JURY QUESTION

Question No. 1

Has Plaintiff [name] proved that [he/she] was an

employee of Defendant [name]?

Answer “Yes” or “No.”

———————————

297
11.27 PATTERN JURY INSTRUCTIONS

11.27 FLSA—Joint Employers

A. Committee Notes

This charge is for FLSA cases in which there is a

fact issue about joint employment.

If an employee performs work that simultaneously

benefits two or more employers, or works for two or
more employers at different times during the workweek,
a joint-employment relationship may arise. The com-
mon situations for finding a joint-employment relation-
ship are:

(1) where there is an arrangement be-

tween the employers to share the employee’s
services, as, for example, to interchange em-
ployees; or

(2) where one employer is acting directly

or indirectly in the interest of the other em-
ployer (or employers) in relation to the em-
ployee; or

(3) where the employers are not com-

pletely disassociated with respect to the em-
ployment of a particular employee and may be
deemed to share control of the employee,
directly or indirectly, by reason of the fact that
one employer controls, is controlled by, or is
under common control with the other employer.

29 C.F.R. § 791.2(b) (footnotes omitted).1

1
In addition to the regulations, the U.S. Department of Labor has is-
sued several opinion letters emphasizing that the ultimate question is one
of economic dependence and suggesting additional factors to review in
determining joint employment, including: the power to control or supervise
the workers and work; power to hire, fire, or determine the permanency
and duration of the relationship; the level of skill; whether the worker’s
activities are an integral part of overall business operations; where the

298
EMPLOYMENT CLAIMS 11.27
B. Charge

In this case, you must decide whether Plaintiff

[name] was an employee of Defendant [name] as well
as an employee of [name of alleged other employer].
You should answer this question in light of the eco-
nomic realities of the entire relationship between the
parties based on the evidence.

Consider the following factors to the extent you

decide that each applies to this case: [specify applicable
factors]:

(a) the nature and degree of control over the em-

ployee and who exercises that control;

(b) the degree of supervision, direct or indirect,

over the employee’s work and who exercises
that supervision;

(c) who exercises the power to determine the em-

ployee’s pay rate or method of payment;

(d) who has the right, directly or indirectly, to

hire, fire, or modify the employee’s employ-
ment conditions;

(e) who is responsible for preparing the payroll

and paying wages;

(f) who made the investment in the equipment

and facilities the employee uses; and

(g) the employment’s permanence and duration.

While no single factor is determinative, the extent

of the right to control the means and manner of the

work is performed; the equipment used; who performs payroll for and
pays the employees; and similar questions. Wage & Hour Op. Letter (May
11, 2001).

299
11.27 PATTERN JURY INSTRUCTIONS

worker’s performance is the most important factor.

300
EMPLOYMENT CLAIMS 11.27
11.27 Pattern Jury Question, FLSA—Joint
Employers1

JURY QUESTION

Question No. 1

Has Plaintiff [name] proved that Defendant [name]

was [his/her] employer as well as [name of alleged other
employer]?

Answer “Yes” or “No.”

———————————

1
Fifth Circuit cases that have addressed joint employment provide
limited guidance. See, e.g., Martin v. Bedell, 955 F.2d 1029, 1035 (5th Cir.
1992); Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194 (5th Cir. 1983).
Recently, the Fifth Circuit held that “[i]n [the] joint-employer context in
actions under the FLSA, each employer must meet the economic reality
test.” Orozco v. Plackis, 757 F.3d 445, 448 (5th Cir. 2014) (citing Gray v.
Powers, 673 F.3d 352, 355 (5th Cir. 2012)).

301
 12

TAX REFUNDS
Overview

The following introductory sentence may be appropriate for

these instructions: In this case, Plaintiff [name] seeks a refund of
taxes that [he/she] has paid.

302
TAX REFUNDS 12.1
12.1 Reasonable Compensation to Stockholder—
Employee

Plaintiff [name] is entitled to certain tax deduc-

tions that are ordinary and necessary business expen-
ses, such as reasonable salaries or other compensation
paid for personal services actually rendered. A corpora-
tion, however, is not entitled to a deduction for divi-
dends it pays to its shareholders. Dividends a corpora-
tion pays to its shareholders are a distribution of
profits, not deductible expenses.

The Commissioner of Internal Revenue must disal-

low any portion of a compensation deduction that the
Commissioner believes is (1) not compensation or (2)
unreasonable in amount. This prevents a corporation
from improperly reducing its taxes by distributing all
or some of its profits to its shareholders and calling the
distribution something else, like salaries.

You must decide whether Plaintiff [name] may

deduct on its federal income tax returns certain
amounts it says it paid as salaries for the years
involved. To be entitled to the salary deduction claims,
Plaintiff [name] must establish each of the following
elements by a preponderance of the evidence:

1. that the payments were actually paid as com-

pensation for services rendered and were not a
distribution of the profits of the business; and

2. that the payments are reasonable when com-

pared with the personal services actually
rendered.

The fact that Plaintiff [name] called the payments

salary, compensation or bonus is not determinative.

Reasonable compensation is the amount that is

paid for similar services, by similar enterprises, under
303
12.1 PATTERN JURY INSTRUCTIONS

similar circumstances, to a qualified person, whether

that person is a shareholder of the corporation or not.

In deciding what is reasonable compensation, you

may consider all of the following factors:

1. The size, nature and complexity of Plaintiff

[name]’s business.

2. The quality and quantity of the services actu-

ally rendered by the employee, including the
difficulty or simplicity of the work and the
responsibility assumed by the employee.

3. The qualifications, experience and background

of the employee, including any special training
and formal education.

4. Whether or not all of the employee’s time was

devoted to the business, or whether the em-
ployee devoted time to other businesses, inter-
ests and activities.

5. The salaries paid to others employed by the

Plaintiff [name] and whether and how much
stock they owned in the corporation.

6. What a comparable business pays for compara-

ble services.

7. The relationship between the amounts paid to

the employee and the employee’s shareholdings
in Plaintiff [name].

8. The dividend history of Plaintiff [name].

9. Whether the amount paid was set or adjusted

after the profits for the year were known.

10. The extent of control which the employee or a

member of the employee’s family had over the
304
TAX REFUNDS 12.1
corporation in setting the amount of the
payment.

11. Whether the person or persons setting the

amount of the payment did so with a view of
avoiding payment of corporate taxes on that
amount.

No one factor is controlling. You should make your

decision after considering all the evidence.

[Remember that this case does not involve Plaintiff

[name]’s right to pay any amount it wishes to any em-
ployee it chooses. The only issue is whether all of the
amounts that were paid qualify as a tax deduction.]

305
12.2 PATTERN JURY INSTRUCTIONS

12.2 Debt v. Equity

A corporation may deduct from its gross income for

income tax purposes any amount it pays as interest on
money that it has borrowed. However, a corporation
may not deduct from its taxable income any dividends
it pays to its shareholders. [The fact that the amount
paid is taxable to the recipient, either as interest or as
a dividend, is irrelevant.]

The Commissioner of Internal Revenue determined

that the payments the stockholders made to Plaintiff
[name] were investments by them in the corporation’s
capital and not loans to the corporation. The Commis-
sioner determined that the later payments Plaintiff
[name] made to those stockholders were dividend
distributions and not interest payments on loans to the
corporation. As a result, the Commissioner disallowed
the deductions Plaintiff [name] claimed for payments
as interest. Plaintiff [name] has the burden of proving
that the Commissioner’s determination was incorrect.

You must decide whether the stockholders’ pay-

ments to Plaintiff [name] created a good-faith indebted-
ness—a true loan—or whether they were made as
investment in the capital of the corporation. A person
may be both an investor and a creditor in the same
corporation but, as I will explain later, status as one or
the other is not determined by the label the parties at-
tached to the transactions.

An “investment in capital” is an advance a stock-

holder makes to a corporation as an investment for the
purpose of making a profit. Whether the stockholder
makes a profit depends on, and is measured by, the
future success of the business. In other words, the
stockholder making the advance intends to make an
investment and take the risks associated with the
venture. The corporation is not committed to repay the
money to the stockholder. The stockholder-investor
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TAX REFUNDS 12.2
anticipates a return out of future profits of the
enterprise. A return is by no means certain, however,
because an investment in capital is similar to any other
investment that depends on future profits and earnings.

A “loan” is an advance of money under an agree-

ment that the money will be repaid at some future date.
The agreement and obligation to repay must be
absolute. Of course, the lender takes the risk that the
corporation may not be able to repay the loan; however,
the obligation to do so continues to exist without regard
to the corporation’s financial ability.

The essential difference between a stockholder who

makes a capital investment and a creditor who loans
money to the corporation is that the stockholder intends
to embark on the corporate venture as an owner with
all associated risks of loss in order to reach [his/her]
goal of making a profit. The creditor does not intend to
take such risks insofar as they may be avoided. Instead,
the creditor merely lends money to others who intend
to take the risks.

There is no single test to determine whether a

stockholder’s advances to a corporation are considered
as loans to the corporation or as capital investments in
the corporation. You must consider all the facts of this
case and determine the true substance of the
transaction. Neither names nor labels are
determinative. You must examine the transaction in
terms of what the parties intended to accomplish and
what they actually accomplished. You should not be
misled by the symbols, labels or forms they used.

In determining whether the transaction was a loan

or an investment, you may consider the following
factors:

1. The presence or absence of a maturity date.

The presence of a fixed maturity date indicates
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12.2 PATTERN JURY INSTRUCTIONS

a fixed obligation to repay, a characteristic of a

loan. The absence of a fixed maturity date
indicates that repayment was in some way tied
to the fortunes of the business, which is a
characteristic of a stockholder’s investment.

2. Whether there is an expectation of payment at

maturity. If there is such an expectation, this
indicates the existence of a debt. If there is no
real expectation of payment at maturity or if
there is an unreasonably postponed due date
on the note representing the advance, this
indicates that the advance was intended to be
an investment.

3. Whether the corporation established a sinking

fund—that is, a fund in which money is ac-
cumulated to pay a loan when it becomes due—;
whether the corporation had the notes of the
stockholder subordinated to other indebtedness;
or whether the corporation prevailed on its
stockholders to postpone or forego paying the
amounts that they termed principal or interest.
Any of these acts would indicate that there was
a reasonable expectation of payment at
maturity. If the corporation did not establish a
sinking fund, or did not have the stockholders’
notes subordinated to other creditors, or did
not postpone payment of the stockholders’
notes, this may indicate that there was no good
expectation of payment at maturity.

4. The source of the payments. If repayment is

possible only out of corporate earnings, the
transaction looks like a contribution of equity
capital. If, however, repayment does not depend
on earnings, the transaction looks like a loan to
the corporation.

5. An increased participation in management. If

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TAX REFUNDS 12.2
the contributors were granted an increased vot-
ing power or participation in the affairs of the
corporation by virtue of the advance, this
indicates that the advance was an investment.
If the contributors were not granted any in-
creased voting power or participation in the
corporation’s affairs by virtue of the advance,
this indicates that the transaction was a loan
and not an investment in capital.

6. How the corporation treated other creditors. If

the corporation paid other creditors on the ma-
turity of the corporation’s obligation to them,
but the stockholders’ advances to the corpora-
tion were not so paid, this indicates that the
stockholders’ advances were capital invest-
ments, and not true loans.

7. Whether there was “thin” or inadequate

capitalization. Thin capitalization is evidence
of a capital contribution where the debt to
equity ratio was initially high. As to the debt to
equity ratio, if the amount of the debt is much
higher, or several times higher, than the
amount of capital stock, this would tend to
indicate that the advances in question were
capital investments. If the amount of debt is
more nearly equal to, or is less than, the
amount of capital stock, this indicates that the
advances represented true indebtedness.

8. If the corporation makes so-called interest pay-

ments, but does so only when profits are avail-
able, this indicates a capital investment. If reg-
ular payments are made, whether profits are
available or not, this indicates that the trans-
action was a loan and not a capital investment.

9. The identity of interests between creditor and

stockholder. If stockholder advances are made
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12.2 PATTERN JURY INSTRUCTIONS

in proportion to their respective stock owner-

ship, it looks like an equity capital contribution.
A sharply disproportionate ratio between a
stockholder’s percentage interest in stock and
the debt strongly indicates that the debt is a
true loan.

10. The corporation’s ability to obtain loans from

outside sources. If the corporation has the
ability to borrow funds from outside sources
when an advance by a shareholder is made,
then the advance looks like a true loan. If no
reasonable creditor would have loaned funds
to the corporation at the time of the advance,
an inference arises that a reasonable share-
holder also would not do so, and the transac-
tion has the appearance of a capital
investment.

No single factor or consideration is controlling.

Your decision should be made on the basis of all the ev-
idence in the case.

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TAX REFUNDS 12.3
12.3 Employee v. Independent Contractor

The law requires every employer that pays wages

to an employee to deduct and withhold a certain amount
of taxes from the employee’s gross wages. That employer
pays those taxes to the federal government for the
employee.

If the employer fails to withhold the necessary

taxes from the employee’s wages, the employer is
required to pay the amount that it should have
withheld.

Plaintiff [name] has made certain payments to the

federal government as taxes deducted and withheld
from employee’s wages. Plaintiff [name] contends that
it was not liable for the amount it paid, and is entitled
to a refund on the ground that [name of individual/
category of individuals] was/were not its employee(s),
but was/were, instead, [an] independent contractor(s).
If [name of individual/category of individuals] was/were
not [an] employee(s), then Plaintiff [name] is entitled to
recover the money. If [name of individual/category of
individuals] was/were [an] employee(s), then Plaintiff
[name] is not entitled to recover the money it paid.

The sole issue for you to decide is whether, during

the time in question, [name of individual/category of
individuals] was/were employee(s) of the plaintiff or
whether they were independent contractors. There are
a number of factors you must take into consideration in
making that determination. No one factor is controlling.
Your determination should be made from all the evi-
dence in this case.

One of the most important considerations is the

degree of control Plaintiff [name] exercised over [name
of individual/category of individual]’s work. An employer
has the right to control an employee. It is important to
determine whether Plaintiff [name] had the right to
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12.3 PATTERN JURY INSTRUCTIONS

direct and control [name of individual/category of

individuals] not only as to the results of [his/her/their]
work, but also as to the details, manner and means by
which those results were accomplished. You must
determine whether Plaintiff had the right to control the
number and the frequency of breaks, how [he/she/they]
performed the work, the type of equipment [he/she/they]
could use, and the work schedule. If you find that the
Plaintiff had the right to supervise and control those
details, and the manner and means by which the results
were to be accomplished, this indicates that there was
an employer-employee relationship between the Plain-
tiff and [name of individual/category of individuals]. A
finding that the Plaintiff did not exercise such elements
of supervision and control over [name of individual/
category of individuals] would support a finding that
[he/she/they] were independent contractors and not
Plaintiff [name]’s employees. It is the right to control
and not the actual exercise of control that is important.

Another factor you should consider is whether

[name of individual/category of individuals] were carry-
ing on an independent business or whether they
regularly worked in the course of Plaintiff [name]’s
business. For this purpose, you may consider whether
[name of individual/category of individuals] advertised
or generally offered their services to others; whether or
not they, as individuals or as a group, used a business
name in dealing with Plaintiff [name]; whether they
listed themselves in any business capacity in city or
telephone directories; whether they maintained their
own offices; whether they procured necessary licenses
for the carrying on of their activities; whether they sup-
plied their own tools or equipment; and any other evi-
dence tending to show that they were carrying on an
independent business as individuals or as a group.

Another factor you should consider is the term and

duration of the relationship between Plaintiff [name]
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TAX REFUNDS 12.3
and [name of individual/category of individuals]. The
relationship of an independent contractor generally
contemplates the completion of an agreed service within
a stipulated period of time. An employment relation-
ship generally involves a continuous rendering of ser-
vices for an indefinite period of time.

Another factor you may consider is the manner of

payment. An independent contractor generally is one
who has the opportunity to make a profit or risk taking
a loss; an employee generally does not have the op-
portunity to make a profit or risk taking a loss. An em-
ployee generally is paid on time or piecework or com-
mission basis, while an independent contractor is
ordinarily paid an agreed amount—or according to an
agreed formula basis—for a given job.

The description the parties give to their relation-

ship is not controlling. You must determine whether
the relationship between Plaintiff [name] and [name of
individual/category of individuals] is one of employment
or of independent contract, taking into account all of
the factors I have mentioned to you and all of the evi-
dence in this case.

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12.4 PATTERN JURY INSTRUCTIONS

12.4 Business Loss v. Hobby Loss

The controversy in this case concerns the deduct-

ibility of expenses involved in the operation of [name of
business or activity]. Plaintiff [name] contends that [he/
she] operated [name of business or activity] as a busi-
ness for profit, and therefore is entitled to a deduction
from income tax for the years [specify] for the losses
[he/she] sustained in operating [name of business or
activity]. The government contends that Plaintiff
[name] operated [name of business or activity] for
personal pleasure, enjoyment and prestige, that Plain-
tiff [name] did not have a profit motive in operating
[name of business or activity] and that, as a conse-
quence, the Plaintiff [name] is not entitled to deduct
the losses that resulted from operating [name of busi-
ness or activity].

A taxpayer is allowed to deduct all of the ordinary

and necessary expenses paid or incurred in carrying on
a trade or business. Moreover, if a taxpayer sustained a
loss during a particular year, [he/she] may deduct that
loss from income derived from other sources, such as
Plaintiff [name] has done here. The key words are
“trade or business.” If expenses or losses occur in a
trade or business, they are deducible. If a person is
engaged in an activity simply for pleasure or recreation
or social prestige and not to make a profit, the expenses
incurred in the activity are not deductible. An activity
is a trade or business only when a taxpayer enters into
the activity with the real expectation of making a profit.

To constitute a business, the activity usually must

be carried on regularly and continuously, over a period
of time. Generally, a person engaged in a business activ-
ity holds [himself/herself] out as selling goods or ser-
vices and regularly devotes time and attention to that
activity. The activity need not be the taxpayer’s only oc-
cupation or even [his/her] principal occupation. It may
314
TAX REFUNDS 12.4
be a sideline, so long as it occupies the time, attention
and labor of the taxpayer for the purpose of profit, not
as a mere recreation or hobby. In this regard, you may
consider Plaintiff [name]’s regular occupation and the
amount of income derived from that occupation. You
may also compare the character of [his/her] regular oc-
cupation with the size and character of the activity in
question in this case and the time [he/she] expended on
each.

If you find that Plaintiff [name] had a profit mo-

tive, then the fact that Plaintiff [name]’s activities were
conducted in the face of serious losses, standing alone,
does not necessarily mean that those activities were for
Plaintiff [name]’s personal pleasure.

If the taxpayer sincerely and in good faith hopes

and expects to make a profit from the activity, then the
fact that others may believe that there was no reason-
able expectation of profit from the activity does not
prevent it from being a business.

In determining whether Plaintiff [name] intended

to engage in activity for profit, no one factor is
controlling. After considering all of the evidence, you
must decide whether Plaintiff [name] has proved by a
preponderance of the evidence that the activity in ques-
tion constituted the conduct of a trade or business, or
whether Plaintiff [name] engaged in such activity as a
hobby or for recreation or other similar purposes and
not for profit. [You must determine separately for each
of the years involved whether the activity in question
was a trade or business conducted for profit. It may be
a business one year and not the next, or vice versa. In
determining whether the activity was a business in a
particular year, you may consider the fact that the
activity was or was not a business in a year before or
after the particular year you are considering.]

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12.5 PATTERN JURY INSTRUCTIONS

12.5 Real Estate Held Primarily for Sale

Plaintiff [name] claims that [he/she] is entitled to

treat the gain from the sale of the properties in ques-
tion as a capital gain, subject to the lower capital gain
tax rate. The government contends that the gain should
be taxed at the higher ordinary income tax rates.

You must decide whether or not Plaintiff [name] is

entitled to treat the gain from the sale of the properties
in question as capital gain.

A gain qualifies for capital gain tax treatment if

Plaintiff [name] proves by a preponderance of the evi-
dence both of the following:

1. that Plaintiff [name] held each of the parcels of

property for more than six months before the sale; and

2. that Plaintiff [name] did not hold the proper-

ties primarily for sale to customers in the ordinary
course of a trade or business.

[If the parties agree that Plaintiff [name] held the

properties in question for more than six months prior to
the sale.] [You must determine whether Plaintiff [name]
held the properties in question for more than six
months prior to the sale. If [he/she] did not, then you
must find that Plaintiff [name] is not entitled to treat
the gain as capital gain.] If [he/she] did, then you must
decide whether, at the time of the sale, Plaintiff [name]
was holding the properties in question primarily for
sale to customers in the ordinary course of Plaintiff
[name]’s trade or business. “Primarily” means “of first
importance” or “principally.”

In making your decision, you must carefully scruti-

nize the circumstances surrounding Plaintiff [name]’s
ownership and sale of these properties. While the rea-
son Plaintiff [name] acquired the property is entitled to
316
TAX REFUNDS 12.5
some weight, the ultimate question is the reason why
Plaintiff [name] held the property at the time of sale.
Property that was originally acquired for investment
may change in character to property held for sale to
customers in the ordinary course of a trade or business.
If Plaintiff [name] held the property for investment in
the hope that it would appreciate in value without fur-
ther activity on Plaintiff [name]’s part, this would
indicate that the property was a capital asset. However,
if Plaintiff [name] held the property in the hope that it
could be developed and then resold in the ordinary
course of Plaintiff [name]’s trade or business, this would
be evidence that it was held primarily for sale. You
may consider the following factors in making your
decision:

1. The extent to which Plaintiff [name] (or others

acting on [his/her/its] behalf) engaged in devel-
oping or improving the properties. If there was
development or improvement, this would indi-
cate that Plaintiff [name] was holding the prop-
erties for sale to customers in the ordinary
course of [his/her/its] trade or business.

2. The number, continuity and frequency of the

sales. The presence of extensive and continuous
sales activity over a period of time would
indicate that Plaintiff [name] held the proper-
ties in question for sale to customers in the
ordinary course of a trade or business. Limited
sales on an infrequent basis are evidence that
Plaintiff [name] did not hold the properties for
sale to customers in the ordinary course of a
trade or business.

3. The solicitation of customers. If plaintiff [name]

(or others acting on [his/her/its] behalf) actively
solicited customers, this would indicate that
Plaintiff [name] was holding the properties in
317
12.5 PATTERN JURY INSTRUCTIONS

the ordinary course of a trade or business. If

Plaintiff [name] advertised the properties for
sale, this would be evidence that [he/she/it] was
holding the properties for sale to customers in
the ordinary course of trade or business. How-
ever, if Plaintiff [name] did not actively solicit
customers and did not advertise the properties
for sale, it is evidence that the properties were
not held for sale to customers in the ordinary
course of a trade or business.

4. The income Plaintiff [name] derived from the

sale of the properties in relation to income from
other sources. If a substantial part of Plaintiff
[name]’s income was derived from the sales of
these properties, this is an indication that the
sales activity constituted the conduct of a trade
or business. If the income derived was not
substantial in relation to income from other
sources, this is an indication that the sale of
the properties did not constitute a trade or
business.

5. The holding period of the property. The shorter

the elapsed time between Plaintiff [name]’s
acquisition of the properties and the disposition
of them, the more reasonable it is to conclude
that Plaintiff [name] held the properties for
sale to customers in the ordinary course of a
trade or business. Conversely, the longer the
holding period, the more it appears that Plain-
tiff [name] held the properties for investment
purposes.

These are not exclusive factors. They are guidelines.

There may be other factors that you may consider that
I have not mentioned. You should bear in mind that no
one factor is determinative of the issue before you. In
making your decision, you should carefully weigh all of
318
TAX REFUNDS 12.5
the evidence.

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12.6 PATTERN JURY INSTRUCTIONS

12.6 Section 6672 Penalty

[Name], a corporation, withheld from the wages

and salaries of its employees federal income taxes and
social security taxes totaling $[specify]. The corporation
failed to pay to the government the amount withheld as
required under the law. The corporation then became
insolvent and had no funds from which the government
could collect the withheld taxes.

The law provides that if a person associated with a

corporation, has the duty and responsibility to see that
the taxes are paid to the government, and willfully fails
to do so, that person is [himself/herself] liable to the
government in the form of a penalty for the amount of
taxes withheld but not paid. This generally is referred
to as the “100 percent penalty” because the amount of
the penalty is equal to the amount of taxes that were
withheld but not paid. The penalty is merely a means
of collecting the taxes withheld and not paid, in order
to make the government whole.

The employer, a corporation, can act only through

its officers, directors and employees. Every corporation
that is an employer must have some person or persons,
but at least one, who has the duty or responsibility of
withholding and paying the taxes that the law requires
the corporation to withhold and to pay to the
government. More than one person may be liable for
the 100 percent penalty.

The government contends that Plaintiff [name] was

one of the persons responsible for collecting and paying
to it the taxes that were withheld. The government also
contends that [his/her] failure to pay over those taxes
was willful. Plaintiff [name] has the burden of proving
to you, by a preponderance of the evidence, either that
[he/she] was not a person whose duty it was to collect
and pay to the government the taxes in question, or
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TAX REFUNDS 12.6
that [he/she] did not willfully fail to collect and pay
over such taxes.

The first issue is whether Plaintiff [name] was a

responsible person. The term “responsible person”
includes any person who is connected or associated with
the corporation-employer in such a manner that [he/
she] has the power to see that the taxes are paid, or the
power to make final decisions concerning the corpora-
tion, or the power to determine which of the corpora-
tion’s creditors are to be paid and when they are to be
paid. The term “responsible person” may include
corporate officers, employees, members of the board of
directors or stockholders. The meaning of the term
“responsible person” is broad and is not limited to the
person who actually prepares the payroll checks or the
tax returns. One may be a “responsible person” al-
though [he/she] is not authorized to draw checks for the
corporation, so long as [he/she] has the power to decide
who will receive the corporate funds. In other words,
the responsible person is any person who can effectively
control the corporation’s finances or determine which of
the corporation’s bills should or should not be paid.

If you conclude that Plaintiff [name] was not a

responsible person, then you need not consider any
other issue, and you must find in favor of Plaintiff
[name]. However, if you find that Plaintiff [name] was
a responsible person, then you must decide whether
Plaintiff [name] acted willfully in the failure to pay the
withheld taxes to the government.

The term “willfully” means that the act of failing to

pay over the taxes was voluntarily, consciously and
intentionally done without reasonable cause. If the
responsible person consciously, voluntarily and inten-
tionally used, or caused to be used, the funds that were
withheld to pay taxes for some other purpose, then [he/
she] has acted willfully. It is not necessary to find that
321
12.6 PATTERN JURY INSTRUCTIONS

Plaintiff [name] had bad motives. It must be shown

only that Plaintiff [name] made the deliberate choice to
use the funds in some way other than to pay the
government. If you find that, at a time when withheld
taxes were due and owing to the government, Plaintiff
[name] used corporate funds to pay suppliers, or em-
ployees’ net take home salaries, or rent, or any creditor,
including Plaintiff [name], or in any way other than
paying the government the withheld wages of the em-
ployees as their federal income taxes and social secu-
rity taxes, you must find that Plaintiff [name] acted
willfully in failing to see that the withheld taxes were
paid. It is no excuse or defense that the responsible
person, in good faith, hoped to pay the taxes at a later
time, or relied on advice and information furnished by
accountants and attorneys.

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TAX REFUNDS 12.7
12.7 Gifts in Contemplation of Death

A gift made by a person within the three years im-

mediately before [his/her] death is presumed to have
been made in contemplation of death. Unless Plaintiff
[name] establishes by a preponderance of the evidence
that the gift by [name of deceased] was not made in
contemplation of death, the fair market value of that
gift must be included in [name of deceased]’s gross
estate for federal estate tax purposes.

The Commissioner of Internal Revenue determined

in this case that the gifts were made in contemplation
of death, and therefore assessed additional taxes
against the estate. Plaintiff [name] challenges the Com-
missioner’s determination.

The term “in contemplation of death” does not refer

to the general expectation of death that all of us share.
On the other hand, its meaning is not restricted to a
fear or belief that death is imminent or near. Rather, a
transfer is “in contemplation of death’ if it is prompted
by the thought of death (although the thought of death
may not be the only thing that prompts it). A transfer
is prompted by the thought of death if it is made either
with the purpose of avoiding death taxes, or if it is made
for any other motive associated with death.

The issue is [name of deceased]’s state of mind

when the transfer of property was made. Stated an-
other way, you must determine what prompted [name
of deceased], at the time of transfer, to make the
transfer. You must determine [his/her] motives by
considering all of the facts and circumstances surround-
ing the transfer.

In this connection, you should consider the follow-

ing questions:

1. What was [name of deceased]’s age at the time

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12.7 PATTERN JURY INSTRUCTIONS

of the transfer? A transfer made by a person in

advanced years is more likely to be in contem-
plation of death than a transfer made by a
person who is not advanced in years.

2. What was the cause of [name of deceased]’s

death? A transfer made by a person who is in
bad health and who knows of the bad health is
more likely to be in contemplation of death than
a transfer made by a person who is in good
health and who knows of the good health.

3. What was the relative value of the property

given away? If the value of the property trans-
ferred by [name of deceased] is small in com-
parison to the overall value of his/ her estate,
this is an indication that the transfer was not
made in contemplation of death. However, if
the property transferred had a substantial
value and comprised a substantial portion of
[name of deceased]’s estate before the transfer,
this may be an indication that the transfer was
made in contemplation of death.

4. Who was the recipient or donee of the gift? A

transfer to a person who would normally have
received the property upon the transferor’s
death is more likely to be in contemplation of
death than a transfer to a person who would
not normally have received the property upon
the transferor’s death.

5. Had [name of deceased] made such gifts before?

If a person had a history of making gifts, this
indicates that the transfer involved was not
made in contemplation of death. If [name of
deceased] did not have a history of making
gifts, the fact that he (she) began making gifts
shortly before death is an indication that they
were made in contemplation of death.
324
TAX REFUNDS 12.7
6. Were the gifts made pursuant to a specific plan?
If you find that [name of deceased] made this
transfer pursuant to a plan to reduce the
amount of taxes that would be due on [his/her]
estate, then it is more likely that the transfer
was made in contemplation of death. On the
other hand, a finding that the transfer was not
made in order to reduce taxes does not neces-
sarily mean that it was not made in contempla-
tion of death, since it may still have been a
substitute for giving property by will at death.

Each of these factors is relevant in helping your de-

cision, but no single factor is controlling. If you find
that Plaintiff [name] has proved by a preponderance of
the evidence that a life motive was the dominant mo-
tive that prompted [name of deceased] to make the gifts,
then Plaintiff [name] has overcome the presumption
that the gifts were made in contemplation of death and
you should find for Plaintiff [name]. If you find that a
death motive was the dominant motive that prompted
[name of deceased] to make the gifts, then you must
find for the government.

After considering all of the facts and circumstances,

you may find that [name of deceased] had mixed mo-
tives for making these gifts and that those motives as-
sociated with life were evenly balanced by other mo-
tives associated with death. If you do, you must find for
the government, because Plaintiff [name] has failed to
prove to you by a preponderance of the evidence that
the transfer was not made in contemplation of death.

325
 13

MISCELLANEOUS FEDERAL
CLAIMS
13.1 Automobile Dealers Day-in-Court Act (15
U.S.C. § 1221)

Plaintiff [name] claims that Defendant [name]

failed to act in good faith in [terminating/cancelling/not
renewing] Plaintiff [name]’s written franchise agree-
ment, violating a federal statute called the Automobile
Dealers Day-in-Court Act.1 To prevail on a claim under
the Act, Plaintiff [name] must show a lack of good faith
by Defendant [name].2 This requires a showing that
Defendant [name] coerced or intimidated Plaintiff
[name].3 Each party to an automobile franchise agree-
1
The ADDCA states:
An automobile dealer may bring suit against any automobile
manufacturer . . . and shall recover the damages by him sustained
and the cost of suit by reason of the failure of said automobile
manufacturer . . . to act in good faith in performing or complying
with any of the terms or provisions of the franchise, or in terminat-
ing, canceling, or not renewing the franchise with said dealer[.]
15 U.S.C. § 1222.
2
Randy’s Studebaker Sales, Inc. v. Nissan Motor Corp., 533 F.2d 510,
514 (10th Cir. 1976) (The ADDCA “gives to an automobile dealer a federal
cause of action against an automobile manufacturer who fails to act in
good faith in performing or complying with any of the terms or provisions
of the franchise.”).
3
Cabriolet Porsche Audi, Inc. v. Am. Honda Motor Co., 773 F.2d
1193, 1210 (11th Cir. 1985), cert. denied, 475 U.S. 112 (1986) (“Case law is
clear that a manufacturer fails to act in good faith for purposes of recovery
under [the ADDCA] only if its conduct amounts to coercion or
intimidation.”); Bob Maxfield, Inc. v. Am. Motors Corp., 637 F.2d 1033,
1038 (5th Cir. 1981) (“Accordingly, it is well established that actual coer-
cion, intimidation, or threats are an essential element of a cause of action
under the Act.”).

326
MISCELLANEOUS FEDERAL CLAIMS 13.1
ment must be free from coercion, intimidation, or
threats of coercion or intimidation from the other party.4

Plaintiff [name] must prove each of the following

by a preponderance of the evidence:

1. that Defendant [name]’s conduct in

[terminating/cancelling/not renewing] Plaintiff
[name]’s written franchise agreement amounted
to coercion or intimidation of, or threats to
coerce or intimidate, Plaintiff [name]; and

2. that Plaintiff [name] suffered damages as a

result of Defendant [name]’s conduct.

The fact that a dealer has a written franchise

agreement with a manufacturer does not give the dealer
the right to have the written agreement renewed when
it expires. The manufacturer, however, must act in good
faith in deciding whether to renew the agreement. This
does not prohibit the manufacturer from enforcing rea-
sonable provisions of the contract or from advancing its
own business interests by encouraging the dealer to
make its operations more efficient or to sell more. The
issue is not whether Defendant [name] acted unfairly,
arbitrarily, or inequitably in its business relations with
Plaintiff [name]. The issue is only whether Defendant
[name] failed to act in good faith because its actions to-
ward Plaintiff [name] amounted to coercion or
intimidation.

To prove coercion or intimidation, Plaintiff [name]

must prove by a preponderance of the evidence that
there was conduct on Defendant [name]’s part that
4
15 U.S.C. § 1221(e) (2006) (“The term ‘good faith’ shall mean the
duty of each party to any franchise, and all officers, employees, or agents
thereof to act in a fair and equitable manner toward each other so as to
guarantee the one party freedom from coercion, intimidation, or threats of
coercion or intimidation from the other party: Provided, That recommen-
dation, endorsement, exposition, persuasion, urging or argument shall not
be deemed to constitute a lack of good faith.”) (emphasis omitted).

327
13.1 PATTERN JURY INSTRUCTIONS

resulted in Plaintiff [name]’s [acting] [refraining from

acting] against its will. Plaintiff [name] must show that
it was coerced in some way into doing something it had
a lawful right not to do, or into not doing something it
had a lawful right to do. The coercion or intimidation
must include a wrongful demand by Defendant [name]
that would result in penalties or sanctions if Plaintiff
[name] did not comply. The coercion or intimidation, or
threatened coercion or intimidation, must be actual.
The mere fact that a dealer believes that it has been
coerced or intimidated is not sufficient.

If you find in favor of Plaintiff [name], you must

then consider damages. You should award Plaintiff
[name] an amount of money that will fairly compensate
it for the damage the evidence shows it has sustained
and is reasonably certain to sustain in the future as a
result of the [termination of/cancellation of/failure to
renew] the franchise.

(Insert damages elements.)

328
MISCELLANEOUS FEDERAL CLAIMS 13.2
13.2 Odometer Tampering, Motor Vehicle
Information and Cost Savings Act (49
U.S.C. § 32701 et seq.)

Plaintiff [name] claims that [Defendant [name]]

[Defendant [name]’s agent] violated a federal statute
prohibiting tampering with odometers in motor vehicles.
An odometer is the instrument the manufacturer places
in the vehicle to measure and record the total, actual
distance or mileage the vehicle has been driven.

[Plaintiff [name] claims that [Defendant [name]]

[Defendant [name]’s agent], with the intent to defraud,
changed the vehicle’s odometer by [disconnecting/
resetting/altering; specify the alleged conduct covered
by the Act] to show a lower number of miles than the
vehicle actually had been driven.]1 To succeed on this
claim, Plaintiff [name] must prove both of the following
by a preponderance of the evidence:2

1. [that [Defendant [name]] [Defendant [name]’s

agent] changed the vehicle’s odometer to show a lower
1
This bracketed language should be used when the claim is based on
an alleged violation of 49 U.S.C. § 32703(2). If the claim is based on an al-
leged violation of 49 U.S.C. § 32703(3) or § 32705, this language should be
modified, as follows:

§ 32703(3)
Plaintiff claims that Defendant [or its agent], with the intent to
defraud, operated the vehicle knowing that the odometer was discon-
nected or not functional.

§ 32705
Plaintiff claims that Defendant [or its agent], with the intent to
defraud, failed to provide an accurate written odometer disclosure state-
ment on the vehicle when it was transferred.
2
The Fifth Circuit has indicated that preponderance of the evidence
is the appropriate standard under this statute. See Landrum v. T.C.
Goddard, 921 F.2d 61, 63 (5th Cir. 1991) (interpreting 15 U.S.C. §§ 1981,
1991, which was recodified in 1994 at 49 U.S.C. §§ 32701-32711).

329
13.2 PATTERN JURY INSTRUCTIONS

number of miles than the vehicle actually had been

driven;]3 and

2. that [he/she/it] acted with the intent to defraud

someone.

Plaintiff [name] does not have to prove that [he/

she] was the specific person intended to be defrauded.
Nor does Plaintiff [name] have to prove that [he/she] or
anyone else was actually defrauded. Plaintiff [name]
must, however, prove that [Defendant [name]] [Defen-
dant [name]’s agent] acted with the intent to defraud
someone.4

To act with intent to defraud means to act with the

intent to deceive or cheat, ordinarily for the purpose of
bringing some financial gain to one’s self or to another.
Intent to defraud may be established through proof that
the [change to the odometer reading] [operation of the
vehicle knowing that the odometer was disconnected or
nonfunctional] [failure to provide an accurate odometer
disclosure statement] was done with the specific intent
to deceive or with a reckless disregard for the truth as
3
This bracketed part of the first element should be used when the
claim is based on an alleged violation of 49 U.S.C. § 32703(2). If the claim
is based on an alleged violation of 49 U.S.C. § 32703(3) or § 32705, this
language should be modified, as follows:

§ 32703(3)
that the Defendant [or its agent] operated the vehicle knowing that
the odometer was disconnected or not functional;

§ 32705
that the Defendant [or its agent] failed to provide an accurate writ-
ten odometer disclosure statement on the vehicle when it was transferred.
4
See, e.g., Shipe v. Mason, 500 F. Supp. 243, 245 (E.D. Tenn. 1978)
(“The salient showing was that [the defendant] acted with the intent to
defraud, not that anyone was actually defrauded.”), aff’d, 633 F.2d 218
(6th Cir. 1980); see also Haynes v. Manning, 717 F. Supp. 730, 734 (D.
Kan. 1989) (“An essential element of plaintiffs’ federal odometer statutory
claim was that defendants acted with an intent to defraud someone.”),
aff’d in part and rev’d in part on other grounds, 917 F.2d 450 (10th Cir.
1990) (per curiam).

330
MISCELLANEOUS FEDERAL CLAIMS 13.2
to the vehicle’s actual mileage. Mere negligence or
carelessness about whether the odometer reading is ac-
curate is not enough to make a defendant liable.
Plaintiff [name] must show by a preponderance of the
evidence that [Defendant [name]] [Defendant [name]’s
agent] either knew that the odometer reading was inac-
curate or at least acted with reckless disregard about
whether the vehicle’s odometer reading was inaccurate.5

If a preponderance of the evidence does not support

Plaintiff [name]’s claim, then your verdict should be for
Defendant [name]. If, however, a preponderance of the
evidence does support Plaintiff [name]’s claim, then
[he/she] would be entitled to recover either three times
the amount of actual damages the evidence shows [he/
she] sustained, or $10,000, whichever is greater.6

(Insert general instruction on actual or compensa-

tory damages.)

The actual damages are measured by the differ-

ence between the amount Plaintiff [name] paid for the
vehicle and the fair market value of the vehicle on the
date of sale with its actual mileage disclosed and such
5
See, e.g., Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275,
1282 (10th Cir. 1998) (“[A] transferor need not have actual knowledge that
the odometer statement was false before liability may be imposed. Rather,
intent to defraud may be inferred if a transferor lacks such knowledge
only because he ‘‘ ‘display[ed] a reckless disregard for the truth’ ” or
because he ‘‘ ‘clos[ed] his eyes to the truth.’ ” (alterations in the original)
(quoting Haynes v. Manning, 917 F.2d 450, 453 (10th Cir. 1990) (per
curiam)); Nieto v. Pence, 578 F.2d 640, 642 (5th Cir. 1978) (holding that
recklessness or gross negligence in determining or disclosing actual mile-
age is enough for the factfinder to infer intent to defraud).
6
Title 49 U.S.C. § 32710(a) allows a plaintiff to recover three times
the amount of actual damages sustained or $10,000, whichever is greater.
These instructions may be used to have the jury apply the statutory
directive. Another approach is for the jury to be directed simply to
determine the amount of actual damages and the court applies the statu-
tory formula. That is recommended in the 8th Circuit Manual of Model
Civil Jury Instructions (2019) (Instruction 19.70). The amount was
increased from $1,500 to $10,000. See 49 U.S.C. § 32710(a), amended by
Pub. L. 912–141 (July 6, 2012).

331
13.2 PATTERN JURY INSTRUCTIONS

additional sums you find will fairly compensate Plaintiff

[name] for any other damages sustained, including
[specify appropriate other actual damages].7

After you determine Plaintiff [name]’s actual dam-

ages, you would then multiply by three and enter the
resulting amount on your verdict form. If that calcula-
tion results in a figure less than $10,000, then you
would enter the sum of $10,000 as Plaintiff [name]’s
damages.

(Insert instruction on attorney’s fees and costs if

appropriate.)8

7
Title 49 U.S.C. § 32710(a) would permit, for example, an award of
such expenses as repair bills for defects that are directly related to the
car’s higher mileage and overpayment of insurance premiums and licens-
ing fees attributable to the vehicle’s inflated value due to the lower mile-
age reading, provided that these expenses are legitimately attributable to
the defendant’s acts that violated the statute. See, e.g., Duval v. Midwest
Auto City, Inc., 425 F. Supp. 1381, 1388 (D. Neb. 1977) (defining “actual
damages” under the odometer-fraud statute to be the meaning commonly
applied to fraud cases, i.e., the difference between the amount plaintiff
paid and the fair market retail value of the vehicle with number of miles
actually traveled, plus such outlays as are legitimately attributable to acts
of the defendant), aff’d, 578 F.2d 721 (8th Cir. 1978); Oettinger v. Lakeview
Motors, Inc., 675 F. Supp. 1488, 1496 (E.D. Va. 1988) (same); Williams v.
Toyota of Jefferson, Inc., 655 F. Supp. 1081, 1085 (E.D. La. 1987) (same);
Beachy v. Eagle Motors, Inc., 637 F. Supp. 1093, 1095–96 (N.D. Ind. 1986)
(same); Gonzales v. Van’s Chevrolet, Inc., 498 F. Supp. 1102, 1103–04 (D.
Del. 1980) (same); see also Farmers Co-op. Co. v. Senske & Son Transfer
Co., 572 F.3d 492, 498 (8th Cir. 2009) (‘‘ ‘[A]ctual damages’ include (1) the
purchase price of the vehicle less its [fair market value] given the vehicle’s
actual mileage, and (2) any expenses shown to be attributable to the
defendant’s wrongful acts.”).
8
Title 49 U.S.C. § 32710(b) permits an award of reasonable attorney’s
fees and costs to a prevailing plaintiff.

332
MISCELLANEOUS FEDERAL CLAIMS 13.3
13.3 Eminent Domain

This action is brought by the United States under

the federal government’s power of eminent domain. This
term refers to the government’s right and power to take
private property for public purposes. A lawsuit brought
under eminent domain is sometimes called a condemna-
tion proceeding.

The power to take private property for public

purposes is essential to the government’s independence
and its operations. If the government did not have that
ability, any landowner could delay or even prevent pub-
lic improvements, or could force the government to pay
a price higher than the fair market value of the prop-
erty taken. But the government’s eminent domain
power is subject to the requirement that the property
owner be paid “just compensation.” That term means
the fair market value of the property on the date of the
taking. It is your task to decide, based on a preponder-
ance of all the evidence submitted, what the fair mar-
ket value of the property was on the date of the taking.

“Fair market value” means the amount a willing

buyer would have paid a willing seller in an arms-
length transaction, when both sides are fully informed
about all the advantages and disadvantages of the prop-
erty, and neither side is acting under any compulsion to
buy or sell. Fair market value must be determined at
the time of the taking, considering the property’s high-
est and most profitable use, if then offered for sale in
the open market, with a reasonable time allowed to find
a buyer. The burden is on the property owner to prove,
by a preponderance of the evidence, the fair market
value of the property on the date of the taking.

The highest and most profitable use of the property

is the use for which it was actually and potentially suit-
able and adaptable. It is not necessarily what the owner
was using the property for at the time of the taking.
333
13.3 PATTERN JURY INSTRUCTIONS

In some situations, knowledge of the fact that the

government plans to take property will cause an
increase or decrease in the property’s fair market value.
In deciding the fair market value, you should not
consider the fact that the government had plans to take
the land. Instead, you should fix the fair market value
on the date of the taking, without regard to any threat
or possibility of a taking.

The judgment I will enter on your verdict will

provide for the government to pay interest to compen-
sate the landowner, Defendant [name], for any delay in
payment caused by the government after the date of
taking. You may not consider any delay in payment
and may not include any interest or other compensa-
tion for delay in your verdict.

(For cases in which the taking involves only

part of the property or a partial interest in the
property):

When, as in this case, the government takes only

[part of the owner’s property] [a partial interest in the
property], the owner is entitled to both the value of the
interest actually taken and to an additional amount
equal to any decrease in the fair market value of the
owner’s interest in the land that was not taken.

You must determine the fair market value of the

property [property interest] that was actually taken.
This may be determined by subtracting the fair market
value of the property that remains after the taking from
the fair market value of the whole property immediately
before the taking. The difference is the fair market
value of the part that was taken.

You must consider whether there was a decrease or

increase in the fair market value of the owner’s interest
in the land as a result of the severance or separation of
the interest that was taken. The landowner, Defendant
334
MISCELLANEOUS FEDERAL CLAIMS 13.3
[name], is entitled to additional compensation for any
reduction in the fair market value of the [property/
property interest] that was not taken due to the sever-
ance or separation from the [property/property interest]
that was taken.

On the other hand, the government contends that

the portion of the owner’s land that was not taken
increased in value because of the public improvements
involved. Two types of benefits may result from a public
improvement: (1) general benefits; and (2) special
benefits. General benefits are those that result not only
to the property of the defendant landowner, but also to
the property in the community generally. Special
benefits are those that accrue specifically to a particu-
lar piece of land and not to all property in the
community. You may not consider any increase in value
because of general benefits, but you must consider any
increase due to special benefits.

335
13.4 PATTERN JURY INSTRUCTIONS

13.4 Interstate Land Sales Full Disclosure Act

(15 U.S.C. § 1709)

Plaintiff [name] claims that Defendant [name]

violated the Interstate Land Sales Full Disclosure Act.
Under that law, a real estate developer is prohibited
from using the [internet] [mail] [specify other means of
communication used] in interstate commerce for the
[sale/lease] of lots in a subdivision unless the developer
has furnished the purchaser with a document called a
property report before any contract for [sale/lease] is
signed.

The property report must inform a buyer about all

material facts so that the buyer may make an informed
decision whether to enter into an agreement with the
seller. The property report must specify [describe the
type of information required to be included in a prop-
erty report under § 1707 that is relevant to the claims].

Plaintiff [name] claims that Defendant [name]

[made an untrue statement of a material fact/omitted a
material fact that was required to be stated] in the
property report. Plaintiff [name] claims that Defendant
[name] [describe the statement or omission alleged].

To prevail on [his/her] claim, Plaintiff [name] must

prove the following three elements by a preponderance
of the evidence:

1. that the property report [contained an untrue

statement/omitted a fact required to be stated];

2. that the [untrue statement/omitted fact] was

material; and

3. that Plaintiff [name] suffered damages.

If the property report contained a [misstatement/

omission], Plaintiff [name] does not need to prove that
336
MISCELLANEOUS FEDERAL CLAIMS 13.4
Defendant [name] intended to make it or that [he/she]
even knew of it. Plaintiff [name] is required only to
prove that Defendant [name] made the [misstatement/
omission].

A [misstatement/omission] is material if a reason-

able investor would have considered it to be important
in making the decision to [buy/lease] the property.

If you find that Plaintiff [name] has established

[his/her] claim, you must then consider Plaintiff
[name]’s damages. You may award only those damages
that a preponderance of the evidence establishes are
necessary to fairly compensate Plaintiff [name]. Dam-
ages may not be awarded or increased for the purpose
of punishment. Plaintiff [name] is entitled to be
compensated for:

1. the difference between

a. the amount [he/she] paid [to

purchase/to lease] the property, plus the rea-
sonable cost of any improvements [he/she]
made to the property, and

b. the fair market value1 of the property

at the time [he/she] [purchased/leased] it;

2. [less the amount Plaintiff [name] received from

reselling the property]; and

3. any fees paid to independent appraisers; and

4. the expense of any travel to and from the prop-

erty; and

5. reasonable attorney’s fees.

1
“Fair market value” is defined in Pattern Jury Instruction 13.3.

337
 14

[RESERVED]

338
 15

DAMAGES
Overview

The model damages instructions included in this section are

very general in nature and are not appropriate for every federal-
court case. When a state-law claim is brought in federal court, Erie
Railroad Co. v. Tompkins generally requires that state substantive
damages law be applied.1 For damages instructions tailored to
state-law claims, the pattern jury instructions published in that
state should be consulted.2 The damages instructions included
here will generally be appropriate for claims arising under federal
law when common-law tort damage principles apply.3

Some federal claims have specific rules governing damages.

For example, see Instruction No. 11.14 of this book for the rules
governing damages for claims under Title VII and the ADA. A
careful investigation of the relevant statutes and any applicable
specialized federal common law is often necessary to determine the
particular types of damages that attach to a particular federal
claim. These pattern damage instructions are a starting point for
crafting instructions that will be appropriate for many claims aris-
ing under federal law but will have to be tailored to the facts and
law presented in the case.

1
304 U.S. 64, 78 (1938) (“Except in matters governed by the Federal
Constitution or by acts of Congress, the law to be applied in any case is
the law of the state... There is no federal general common law.”).
2
Louisiana: ANDREA BEAUCHAMP CARROLL, LOUISIANA CIVIL JURY INSTRUC-
TION COMPANION HANDBOOK (2018–2019 ed.); H. ALSTON JOHNSON III, 18 LOUISI-
ANA CIVIL LAW TREATISE CIVIL JURY INSTRUCTIONS (3d ed. 2011). Mississippi:
MISS. JUDICIAL COLLEGE, MISSISSIPPI PLAIN LANGUAGE MODEL JURY INSTRUCTIONS
CIVIL (2d ed. 2012). Texas: COMM. ON PATTERN JURY CHARGES OF THE STATE BAR
OF TEX., TEXAS PATTERN JURY CHARGES (2018 ed.).
3
See, e.g., Carey v. Piphus, 435 U.S. 247, 252-53 (1978) (the “rules
[the common law of torts has developed] to implement the principle that a
person should be compensated fairly for injuries caused by a violation of
his legal rights... provide the appropriate starting point for the inquiry
under § 1983...”).

339
15.1 PATTERN JURY INSTRUCTIONS

15.1 Consider Damages Only If Necessary

If Plaintiff [name] has proved [his/her] claim

against Defendant [name] by a preponderance of the
evidence, you must determine the damages to which
Plaintiff [name] is entitled. You should not interpret
the fact that I am giving instructions about Plaintiff
[name]’s damages as an indication in any way that I
believe that Plaintiff [name] should, or should not, win
this case. It is your task first to decide whether
Defendant [name] is liable. I am instructing you on
damages only so that you will have guidance in the
event you decide that Defendant [name] is liable and
that Plaintiff [name] is entitled to recover money from
Defendant [name].

340
DAMAGES 15.2
15.2 Compensatory Damages

If you find that Defendant [name] is liable to

Plaintiff [name], then you must determine an amount
that is fair compensation for all of Plaintiff [name]’s
damages. These damages are called compensatory
damages. The purpose of compensatory damages is to
make Plaintiff [name] whole—that is, to compensate
Plaintiff [name] for the damage that [he/she/it] has
suffered. Compensatory damages are not limited to ex-
penses that Plaintiff [name] may have incurred because
of [his/her] injury. If Plaintiff [name] wins, [he/she] is
entitled to compensatory damages for the physical
injury, pain and suffering, and mental anguish that
[he/she] has suffered because of Defendant [name]’s
wrongful conduct.

You may award compensatory damages only for

injuries that Plaintiff [name] proves were proximately
caused by Defendant [name]’s allegedly wrongful
conduct. The damages that you award must be fair
compensation for all of Plaintiff [name]’s damages, no
more and no less. [Damages are not allowed as a
punishment and cannot be imposed or increased to
penalize Defendant [name].] You should not award
compensatory damages for speculative injuries, but only
for those injuries that Plaintiff [name] has actually suf-
fered or that Plaintiff [name] is reasonably likely to
suffer in the future.

If you decide to award compensatory damages, you

should be guided by dispassionate common sense.
Computing damages may be difficult, but you must not
let that difficulty lead you to engage in arbitrary
guesswork. On the other hand, the law does not require
that Plaintiff [name] prove the amount of [his/her]
losses with mathematical precision, but only with as
much definiteness and accuracy as the circumstances
permit.
341
15.2 PATTERN JURY INSTRUCTIONS

You must use sound discretion in fixing an award

of damages, drawing reasonable inferences where you
find them appropriate from the facts and circumstances
in evidence.

You should consider the following elements of dam-

age, to the extent you find them proved by a preponder-
ance of the evidence:

(Insert the damage elements that may be compensa-

ble under federal or state law. This chapter contains
instructions explaining some common elements.)

342
DAMAGES 15.3
15.3 Injury/Pain/Disability/Disfigurement/Loss
of Capacity for Enjoyment of Life1

You may award damages for any bodily injury that

Plaintiff [name] sustained and any pain and suffering,
[disability], [disfigurement], [mental anguish], [and/or]
[loss of capacity for enjoyment of life] that Plaintiff
[name] experienced in the past [or will experience in
the future] as a result of the bodily injury. No evidence
of the value of intangible things, such as mental or
physical pain and suffering, has been or need be
introduced. You are not trying to determine value, but
an amount that will fairly compensate Plaintiff [name]
for the damages [he/she] has suffered. There is no exact
standard for fixing the compensation to be awarded for
these elements of damage. Any award that you make
must be fair in the light of the evidence.

1
Not all of these elements of damages are available in all state-law
or federal claims which involve personal injury.

343
15.4 PATTERN JURY INSTRUCTIONS

15.4 Property Damage

Plaintiff [name] claims damages for the [loss of]

[loss of value to] [his/her] personal property. If you find
that Plaintiff [name] suffered a total loss of [his/her]
personal property, Plaintiff [name] is entitled to recover
the fair market value of the property at the time of the
incident forming the basis of this lawsuit. If you find
that Plaintiff [name] suffered less than a total loss of
that property, then the measure of that damage is the
difference between the fair market value of the prop-
erty immediately before [the incident forming the basis
of the law suit] and the fair market value immediately
after [the incident forming the basis of this lawsuit].

(If market value is not applicable):

You may award as damages an amount equal to

the cost of restoring the property to its condition before
[the incident forming the basis of this lawsuit].

[You also may take into consideration any loss

Plaintiff [name] sustained by being deprived of the use
of the property during the time required for its [repair/
replacement].]

344
DAMAGES 15.5
15.5 Mitigation of Damages1

A person who claims damages resulting from the

wrongful act of another has a duty under the law to use
reasonable diligence to mitigate his/her damages, that
is, to avoid or to minimize those damages.

If you find the defendant is liable and the plaintiff

has suffered damages, the plaintiff may not recover for
any item of damage which he could have avoided
through reasonable effort. If you find that the defendant
proved by a preponderance of the evidence the plaintiff
unreasonably failed to take advantage of an opportunity
to lessen his damages, you should deny him recovery
for those damages that he would have avoided had he
taken advantage of the opportunity.

You are the sole judge of whether the plaintiff acted

reasonably in avoiding or minimizing his damages. An
injured plaintiff may not sit idly by when presented
with an opportunity to reduce his damages. However,
he is not required to exercise unreasonable efforts or
incur unreasonable expenses in mitigating the damages.
The defendant has the burden of proving the damages
that the plaintiff could have mitigated. In deciding
whether to reduce the plaintiff’s damages because of
his failure to mitigate, you must weigh all the evidence
in light of the particular circumstances of the case, us-
ing sound discretion in deciding whether the defendant
has satisfied his burden of proving that the plaintiff’s
conduct was not reasonable.

1
For claims under Title VII and the ADA, please refer to the mitiga-
tion instruction contained in Instruction No. 11.14.

345
15.6 PATTERN JURY INSTRUCTIONS

15.6 Nominal Damages

Nominal damages are an inconsequential or trifling

sum awarded to a plaintiff when a technical violation of
[his/her] rights has occurred but the plaintiff has suf-
fered no actual loss or injury.

If you find from a preponderance of the evidence

that Plaintiff [name] sustained a technical violation of
[specify or describe applicable right] but that Plaintiff
[name] suffered no actual loss as a result of this viola-
tion, then you may award Plaintiff [name] nominal
damages.

346
DAMAGES 15.7
15.7 Punitive Damages1

If you find that Defendant [name] is liable for

Plaintiff [name]’s injuries, you must award Plaintiff
[name] the compensatory damages that [he/she] has
proved. You may, [in addition], award punitive dam-
ages if you find that Defendant [name] acted with
malice or with reckless indifference to the rights of
others. One acts with malice when one purposefully or
knowingly violates another’s rights or safety. One acts
with reckless indifference to the rights of others when
one’s conduct, under the circumstances, manifests a
complete lack of concern for the rights or safety of
another.2 Plaintiff [name] has the burden of proving
that punitive damages should be awarded [insert ap-
propriate burden of proof here].
1
As with each of these pattern damages jury instructions, it is es-
sential to determine what damages rules and elements apply to the par-
ticular claim. This instruction is merely a starting point. On the general
subject of punitive damages and the guidelines to be considered in fashion-
ing jury charges, see State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S.
408 (2003); BMW of North America v. Gore, 517 U.S. 559 (1996); Pacific
Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991). As in federal law, punitive
damages under state law are only available in specific causes of action
and under specific circumstances. See, e.g., Ross v. Conoco, Inc., 828 So.2d
546, 555 (La. 2002) (“a fundamental tenet of [Louisiana] law is that puni-
tive or other penalty damages are not allowable unless expressly autho-
rized by statute.”). Additionally, state law may contain its own standard
for the assessment of punitive damages.
2
Depending on the facts of a particular case, it may be advisable to
give a more detailed definition of recklessness, such as the one found in
the Restatement (Third) of Torts:
A person acts recklessly in engaging in conduct if:

(a) the person knows of the risk of harm created by the conduct
or knows facts that make the risk obvious to another in the
person’s situation, and

(b) the precaution that would eliminate or reduce the risk

involves burdens that are so slight relative to the magnitude
of the risk as to render the person’s failure to adopt the
precaution a demonstration of the person’s indifference to the
risk.
Restatement (Third) of Torts: Liability for Physical and Emotion
Harm § 2 (2005).

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15.7 PATTERN JURY INSTRUCTIONS

The purpose of punitive damages is to punish and

deter, not to compensate. Punitive damages serve to
punish a defendant for malicious or reckless conduct
and, by doing so, to deter others from engaging in simi-
lar conduct in the future. You are not required to award
punitive damages. If you do decide to award punitive
damages, you must use sound reason in setting the
amount. Your award of punitive damages must not
reflect bias, prejudice, or sympathy toward any party.
It should be presumed that Plaintiff [name] has been
made whole by compensatory damages, so punitive
damages should be awarded only if Defendant [name]’s
misconduct is so reprehensible as to warrant the
imposition of further sanctions to achieve punishment
or deterrence.

If you decide to award punitive damages, the fol-

lowing factors should guide you in fixing the proper
amount:

1. the reprehensibility of Defendant [name]’s

conduct, including but not limited to whether
there was deceit, cover-up, insult, intended or
reckless injury, and whether Defendant
[name]’s conduct was motivated by a desire to
augment profit;

2. the ratio between the punitive damages you

are considering awarding and the amount of
harm that was suffered by the victim or with
which the victim was threatened;

3. the possible criminal and civil sanctions for

comparable conduct.3

As always, care should be taken to tailor punitive damages instructions to

the specific claims being tried, especially if state law is the source of those
claims.
3
Only include this factor if evidence regarding criminal and civil
sanctions for comparable conduct has been presented at trial.

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DAMAGES 15.7
You may consider the financial resources of Defen-
dant [name] in fixing the amount of punitive damages.

(If there is more than one defendant against

whom punitive damages are appropriately
sought):

You may impose punitive damages against one or

more of Defendants [names] and not others. You may
also award different amounts against Defendants
[names].

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