N.C.P.I.—Civil 640.29D

NOTE WELL: Prior to instructing a jury in a case under

the North Carolina Whistleblower Act, carefully read

N.C.P.I.-Civil 640.29A ("Employment Relationship -

Adverse Employment Action in Violation of the North

Carolina Whistleblower Act, N.C. Gen. Stat. § 126-84 et

seq.-INTRODUCTION").

The (state number) issue reads:

“Was there a causal connection between the plaintiff’s [engaging in

activity protected by law] [refusal to carry out an improper directive] and

adverse employment action taken by the defendant against 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,1 two

things, also referred to as elements:2

First, that the plaintiff engaged in activity protected by law; and

second, that the defendant took adverse employment action against the

plaintiff in his employment. I will now explain these terms to you.

As to the first thing, whether the plaintiff engaged in an activity

protected by law, I instruct you that

[[reporting verbally3 or in writing] [planning to report verbally or in

writing]

[a violation of State or Federal law, rule or regulation]

[fraud]

[misappropriation of State resources]

[a substantial and specific danger to the public health or

safety]

[gross mismanagement, gross waste of monies or gross abuse

of authority]]4

[refusing to carry out a directive which in fact

[constitutes a violation of State or Federal law, rule or

regulation]

[poses a substantial and specific danger to public safety]]

is activity protected by law in the North Carolina Whistleblower Act.5

With respect to the second element, I instruct you that adverse

employment action against an employee in his employment includes

retaliation, discharge, threat or other action6 discriminating against the

employee regarding his compensation, terms, conditions, location or

privileges of employment.7

On this issue the plaintiff must also prove, by direct evidence, that

even if there was a lawful reason for the adverse employment action, the

plaintiff’s protected activity was a substantial or motivating factor behind

the adverse employment action taken against him.8

Direct evidence is evidence of conduct or statements that both

reflect directly on the alleged retaliatory attitude and bear directly on the

contested employment decision.9 Direct evidence does not include stray

remarks in the workplace, statements by employees uninvolved in the

employment decision, or statements by decision makers unrelated to the

process of making the employment decision itself.10

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

plaintiff engaged in activity protected by law, and that the defendant

took adverse employment action against the plaintiff in his employment,

and if you further find by direct evidence that the plaintiff’s protected

activity was a substantial or motivating factor behind the adverse

employment action taken against him, 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.