N.C.P.I.—Civil 640.28

NOTE WELL: This instruction is designed for what is

known as a “mixed motive” case. This instruction is

more favorable to the plaintiff than the “pretext”

instruction (N.C.P.I.-Civil 640.27). The United States

Supreme Court in Desert Palace, Inc. v. Costa, 539 U.S.

90 (2003) held that direct evidence of discrimination is

not required in order to be entitled to a mixed motive

instruction in an employment discrimination case under

Title VII. 1

If there are multiple claims of discriminatory acts, a

separate issue should be submitted to the jury for each

claim (one issue for race discrimination, one for sex

discrimination, etc.).2

The first issue reads:

“Did the defendant intentionally discriminate against the plaintiff

[because of his [race] [sex] [age]] [as retaliation for his filing a

complaint for discrimination] when the defendant [failed to hire] [fired]

[disciplined] [failed to promote] [(state other discriminatory act)] the

plaintiff?”

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, that

the defendant intentionally3 discriminated against him because of his

[race] [sex] [age] [having filed a complaint for discrimination].4

The plaintiff must prove that his [race] [sex] [age] [having filed a

complaint for discrimination] was a motivating factor in the defendant's

treatment of him. The plaintiff is entitled to prevail even if you find that

the defendant's conduct was also motivated by a lawful reason.5

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find, by the greater weight of the evidence, that the

defendant intentionally discriminated against the plaintiff [because of his

[race] [sex] [age]] [as retaliation for his having filed a complaint for

discrimination] when the defendant [failed to hire] [fired] [disciplined]

[failed to promote] [(state other discriminatory act)] the plaintiff, then it

would be your duty to answer this issue “Yes” in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the defendant.