11th Cir. Pattern Jury Instr. (Civil) 4.1

to Promote – Free Speech on Matter of Public Concern

Under the First Amendment to the Constitution of the United States, a public

employee has a right to freedom of speech on matters of public concern. In this

case, [name of plaintiff] claims that [he/she] [[describe protected speech or

conduct] / [name of defendant] mistakenly believed that [name of plaintiff]

[describe protected speech or conduct]] and that [name of defendant], while acting

“under color” of state law, intentionally deprived [name of plaintiff] of [his/her]

constitutional right to free speech by [discharging [him/her] from employment/

denying [him/her] a promotion].

[Name of defendant] denies [name of plaintiff]’s claims and asserts that

[describe the defendant’s defense].

To succeed on [his/her] claim, [name of plaintiff] must prove each of the

following facts by a preponderance of the evidence:

First: [Name of defendant]’s actions were “under color” of state

law;

Second: [[Name of plaintiff] [describe protected speech or conduct]] /

[[name of defendant] mistakenly believed that [name of

plaintiff] [describe protected speech or conduct]];

Third: [Name of defendant] [discharged [name of plaintiff] from

employment/denied [name of plaintiff] a promotion]; and

Fourth: [[Name of plaintiff]’s [describe protected speech or conduct]]

/ [[name of defendant]’s [describe mistaken belief]] was a

motivating factor in [name of defendant]’s decision [to

discharge [name of plaintiff]/not to promote [name of

plaintiff]].

[In the verdict form that I will explain in a moment, you will be asked to

answer questions about these factual issues.]

[To be used when the parties stipulate that the defendants acted “under

color” of state law: The parties have agreed that [name of defendant] acted “under

color” of state law so you should accept that as a true and proven fact.]

[To be used when the parties dispute whether the defendants acted

“under color” of state law: For the first element, you must decide whether [name

of defendant] acted “under color” of state law. A government official acts “under

color” of law when [he/she] acts within the limits of lawful authority. A

government official also acts under color of law when [he/she] claims to be

performing an official duty but [his/her] acts are outside the limits of lawful

authority and abusive in manner, or [he/she] acts in a way that misuses [his/her]

power and is able to do so only because [he/she] is an official.]

For the second element, if you find that [name of plaintiff] [describe

protected speech or conduct], then you have found that [he/she] engaged in

“protected speech.”

[To be used when it is alleged that the public employer mistakenly

believed that employee engaged in protected activity: For the second element, if

you find that [name of defendant] mistakenly believed that [name of employee]

engaged in [describe protected speech or activity], then you have found the second

element to be met, whether or not [name of plaintiff] actually engaged in such

[speech/conduct].]

For the third element, you must decide whether [name of defendant]

[discharged [name of plaintiff] from employment/denied [name of plaintiff] a

promotion].

For the fourth element, you must decide whether [[name of plaintiff]’s

protected speech] / [[name of defendant]’s mistaken belief] was a “motivating

factor” in [name of defendant]’s decision. To prove that [[name of plaintiff]’s

protected speech] / [[name of defendant]’s mistaken belief] was a motivating factor

in [name of defendant]’s decision, [name of plaintiff] does not have to prove that

[[his/her] protected speech] / [[name of defendant]’s mistaken belief] was the only

or main reason for [name of defendant]’s actions. It is enough if [[name of

plaintiff] proves that [his/her] protected speech] / [[name of defendant]’s mistaken

belief] influenced [name of defendant]’s decision.

[Name of defendant] claims that [[name of plaintiff]’s protected speech] /

[[name of defendant]’s mistaken belief] was not a motivating factor in the decision

and that [he/she/it] [discharged/did not promote] [name of plaintiff] for [another

reason/other reasons]. While [[name of defendant]’s mistaken belief that [name of

plaintiff] engaged in] speech protected by the First Amendment cannot be a

motivating factor to take action against a public employee , a public employer may

[discharge/decline to promote] a public employee for any other reason, good or

bad, fair or unfair. If you believe [name of defendant]’s reason[s] for the decision

[to discharge/not to promote] [name of plaintiff], and you find that [name of

defendant]’s decision was not motivated by [[name of plaintiff]’s protected speech]

/ [[name of defendant]’s mistaken belief], you must not second guess [name of

defendant]’s decision and you must not substitute your own judgment for [name of

defendant]’s judgment – even if you do not agree with it.

[Including Affirmative Defense (if applicable, see annotations): If you

find in [name of plaintiff]’s favor for each fact [he/she] must prove, you must

decide whether [name of defendant] has shown by a preponderance of the evidence

that [he/she/it] would have made the same decision even if [he/she/it] had not taken

[[name of plaintiff]’s protected activity] / [[his/her/its] mistaken belief that [named

of plaintiff] [describe protected speech or conduct]] into account. If you find that

[name of plaintiff] would [have been dismissed/not have been promoted] for

reasons other than [[his/her] protected speech] / [[name of defendant]’s mistaken

belief that [named of plaintiff] [describe protected speech or conduct]], your

verdict should be for [name of defendant].]

If you find in [name of plaintiff]’s favor for each fact [he/she] must prove,

[and against [name of defendant] on this defense,] you must consider [name of

plaintiff]’s alleged damages.

When considering the issue of [name of plaintiff]’s compensatory damages,

you should determine what amount, if any, has been proven by [name of plaintiff]

by a preponderance of the evidence as full, just , and reasonable compensation for

all of [name of plaintiff]’s damages as a result of the [discharge/denied promotion],

no more and no less. Compensatory damages are not allowed as a punishment and

must not be imposed or increased to penalize [name of defendant]. Also,

compensatory damages must not be based on speculation or guesswork.

You should consider the following elements of damage, to the extent you

find that [name of plaintiff] has proved them by a preponderance of the evidence,

and no others:

(a) Net lost wages and benefits from the date of the [discharge]

[denied promotion] to the date of your verdict; and

(b) Emotional pain and mental anguish.

To determine the amount of [name of plaintiff]’s net lost wages and benefits,

you should consider evidence of the actual wages [he/she] lost and the monetary

value of any benefits [he/she] lost.

To determine whether and how much [name of plaintiff] should recover for

emotional pain and mental anguish, you may consider both the mental and physical

aspects of injury – tangible and intangible. [Name of plaintiff] does not have to

introduce evidence of a monetary value for intangible things like mental anguish.

You will determine what amount fairly compensates [him/her] for [his/her] claim.

There is no exact standard to apply, but the award should be fair in light of the

evidence.

[Mitigation of Damages: You are instructed that any person who claims

damages as a result of an alleged wrongful act on the part of another has a duty

under the law to “mitigate” those damages. For purposes of this case, the duty to

mitigate damages requires [name of plaintiff] to be reasonably diligent in seeking

substantially equivalent employment to the position [he /she] held with [name of

defendant]. To prove that [name of plaintiff] failed to mitigate damages, [name of

defendant] must prove by a preponderance of the evidence that: (1) work

comparable to the position [name of plaintiff] held with [name of defendant] was

available, and (2) [name of plaintiff] did not make reasonably diligent efforts to

obtain it. If, however, [name of defendant] shows that [name of plaintiff] did not

make reasonable efforts to obtain any work, then [name of defendant] does not

have to prove that comparable work was available.

If you find that [name of defendant] proved by a preponderance of the

evidence that [name of plaintiff] failed to mitigate damages, then you should

reduce the amount of [name of plaintiff]’s damages by the amount that could have

been reasonably realized if [name of plaintiff] had taken advantage of an

opportunity for substantially equivalent employment.]

If you find that [name of p laintiff] has failed to prove compensatory

damages, then you must award nominal damages of $1.00.

[Punitive Damages: To be used only for individual -capacity claims against

individual defendants: [Name of plaintiff] also claims that [name of individual

defendant]’s acts were done with malice or reckless indifference to [name of

plaintiff]’s federally protected rights, which would entitle [him/her] to punitive

damages in addition to compensatory damages. [Name of plaintiff] must prove by

a preponderance of the evidence that [he/she] is entitled to punitive damages. You

will only reach the issue of punitive damages if you find that [name of plaintiff]

has proved the elements of [his/her] claim against [name of individual defendant],

and you award [name of plaintiff] compensatory damages. You may not assess

punitive damages against [public employer].

If you find for [name of plaintiff] and find that [name of defendant] acted

with malice or reckless indifference to [name of plaintiff]’s federally protected

rights, the law allows you, in your discretion, to award [name of plaintiff] punitive

damages as a punishment for [name of defendant] and as a deterrent to others.

A person acts with malice if the person’s conduct is motivated by evil intent

or motive. A person acts with reckless indifference to the protected federal rights

of another person when the person engages in conduct with a callous disregard for

whether the conduct violates those protected federal rights.

If you find that punitive damages should be assessed, you may consider the

evidence regarding [name of defendant]’s financial resources in fixing the amount

of such damages. [You also may assess punitive damages against one or more of

the individual defendants, and not others, or against more than one individual

defendant in different amounts.]]

S

PECIAL INTERROGATORIES TO THE JURY

Do you find from a preponderance of the evidence:

1. That [name of defendant]’s actions were “under color” of state law?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your foreperson

should sign and date the last page of this verdict form. If your answer is “Yes,” go

to the next question.

2. That [[name of plaintiff] [describe protected speech or conduct]] / [[name

of defendant] mistakenly believed that [named of plaintiff] [describe protected

speech or conduct]]?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your foreperson

should sign and date the last page of this verdict form. If your answer is “Yes,” go

to the next question.

3. That [name of defendant] [discharged [name of plaintiff] from

employment/denied [name of plaintiff] a promotion]?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your foreperson

should sign and date the last page of this verdict form. If your answer is “Yes,” go

to the next question.

4. That [[name of plaintiff] [describe protected speech or conduct]] / [[name

of defendant]’s mistaken belief that [named of plaintiff] [describe protected speech

or conduct]] was a motivating factor in [name of defendant]’s decision [to

discharge [name of plaintiff] from employment/not to promote [name of

defendant]]?

Answer Yes or No _____________

If your answer is “No,” this ends your deliberations, and your foreperson

should sign and date the last page of this verdict form. If your answer is “Yes,” go

to the next question.

[5. That [name of defendant] would have [discharged [name of plaintiff]

from employment/denied [name of plaintiff] a promotion] even if [name of

defendant] had not taken [[name of plaintiff]’s protected activity] / [[name of

defendant]’s mistaken belief that [named of plaintiff] [describe protected speech or

conduct]] into account?

Answer Yes or No _____________

If your answer is “Yes,” this ends your deliberations, and your foreperson

should sign and date the last page of this verdict form. If your answer is “No,” go

to the next question.]

6. That [name of plaintiff] should be awarded damages to compensate for a

net loss of wages and benefits to the date of your verdict?

Answer Yes or No _____________

If your answer is “Yes,”

in what amount? $______________

7. That [name of plaintiff] should be awarded damages to compensate for

emotional pain and mental anguish?

Answer Yes or No _____________

If your answer is “Yes,”

in what amount? $______________

If you did not award damages in response to either Question No. 6 or

Question No. 7 , [name of plaintiff] is awarded nominal damages in the amount of

$1.00.

[8. That punitive damages should be assessed against [name of individual

defendant]?

Answer Yes or No _____________

If your answer is “Yes,”

in what amount? $______________]

SO SAY WE ALL.

___________________________

Foreperson’s Signature

DATE: ___________________