CACI No. 3053

Employee—Essential Factual Elements (42 U.S.C. § 1983)

[Name of plaintiff] claims that [name of defendant] retaliated against [him/

her/nonbinary pronoun] because [he/she/ nonbinary pronoun] exercised [his/

her/nonbinary pronoun] right to speak as a private citizen about a matter

of public concern. To establish this claim, [name of plaintiff] must prove

all of the following:

1. [That [name of plaintiff] was speaking as a private citizen and not

as a public employee when [he/she/ nonbinary pronoun] [describe

speech alleged to be protected by the First Amendment, e.g.,

criticized the mayor at a city council meeting];]

2. That [name of defendant] [specify retaliatory acts, e.g., terminated

plaintiff’s employment];

3. That [name of plaintiff]’s [e.g., speech to the city council] was a

substantial motivating reason for [name of defendant]’s decision to

[e.g., terminate plaintiff’s employment];

4. That [name of plaintiff] was harmed; and

5. That [name of defendant]’s conduct was a substantial factor in

causing [name of plaintiff]’s harm.

If [name of plaintiff] proves all of the above, [name of defendant] is not

liable if [he/she/ nonbinary pronoun/it] proves either of the following:

6. That [name of defendant] had an adequate employment-based

justification for treating [name of plaintiff] differently from any

other member of the general public; or

7. That [name of defendant] would have [specify adverse action, e.g.,

terminated plaintiff’s employment] anyway for other legitimate

reasons, even if [he/she/ nonbinary pronoun /it] also retaliated based

on [name of plaintiff]’s protected conduct.

In deciding whether [name of plaintiff] was speaking as a public citizen or

a public employee (element 1), you should consider whether

[his/her/nonbinary pronoun] [e.g., speech] was within [his/her/ nonbinary

pronoun] job responsibilities. [However, the listing of a given task in an

employee’s written job description is neither necessary nor sufficient

alone to demonstrate that conducting the task is part of the employee’s

professional duties.]

New November 2017; Revised May 2020