11th Cir. Pattern Jury Instr. (Civil) 4.11

42 U.S.C. §§ 12101-12117

In this case, [name of plaintiff] claims that [name of defendant]

discriminated against [name of plaintiff] by [refusing to hire [him/her]/terminating

[his/her] employment/failing to promote [him/her]] because [he/she] had a

“disability” within the meaning of the Americans with Disabilities Act (the ADA).

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

[describe the defendant’s defense].

Under the ADA, if a person is qualified to do the job, it is unlawful for an

employer to [refuse to employ/discharge/fail to promote] the person because of that

person’s disability.

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

following facts by a preponderance of the evidence:

First: [Name of plaintiff] had a disability;

Second: [Name of plaintiff] was a qualified individual;

Third: [Name of defendant] [refused to employ/discharged/failed to

promote] [name of plaintiff]; and

Fourth: [Name of defendant] took that action because of [name of

plaintiff]’s disability.

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

answer questions about these factual issues.]

Definition of “Disability”

The first element requires that [name of plaintiff] prove by a preponderance

of the evidence that [he/she] had a disability. A “disability” is a physical or mental

impairment that substantially limits one or more major life activities.

A “physical impairment” is a condition that prevents the body from

functioning normally. A “mental impairment” is a condition that prevents the mind

from functioning normally.

A “major life activity” is an activity that is centrally important to everyday

life, including the operation of major bodily functions.

[[Activity at issue] is a major life activity.]

[[Name of plaintiff] claims that [activity at issue] is a major life activity, and

you must decide whether it is. Major life activities include caring for oneself,

performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,

lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,

communicating, and working. Major life activities also include functions of the

immune system; normal cell growth; and digestive, bowel, bladder, neurological,

brain, respiratory, circulatory, endocrine, and reproductive functions.]

An impairment “substantially limits” a major life activity if it prevents or

significantly restricts a person from performing the activity, compared to an

average person in the general population. An impairment that substantially limits

one major life activity is a disability even if it does not limit any other major life

activity.

To decide whether [name of plaintiff]’s [describe impairment] substantially

limits [his/her] ability to [activity at issue], you should consider, as compared to

most people in the general population:

(a) the condition under which [name of plaintiff] performs [activity at

issue];

(b) the manner in which [name of plaintiff] performs [activity at

issue]; and

(c) how long [it takes [name of plaintiff] to/[name of plaintiff] can]

perform [activity at issue].

[Mitigating measures: To decide whether [name of plaintiff]’s [describe

impairment] substantially limits [his/her] ability to [activity at issue], it does not

matter that [his/her] [describe impairment] can be corrected by the use of

[medication/hearing aids/prosthetics/assistive technology/describe other mitigating

measure]. [But you can consider whether [name of plaintiff]’s eyesight could be

corrected by the use of ordinary eyeglasses or contact lenses.]]

[Episodic impairment: If [name of plaintiff]’s impairment is not always a

problem but flares up from time to time, that can be a disability if it would

substantially limit a major life activity when active.]

[When there is a jury question on “record of” disability: [Name of

plaintiff] also can establish that [he/she] had a disability by proving that [he/she]

had a record of a disability. [Name of plaintiff] had a record of a disability if

[he/she] had a history of, or had been misclassified as having, a mental or physical

impairment that substantially limits one or more major life activities. Put another

way, if [name of plaintiff] had a disability but [has now recovered/the disability is

in remission], [he/she] is still considered to have a disability within the meaning of

the ADA.]

[When there is a jury question on “regarded as”: [Name of plaintiff] can

also establish that [he/she] had a disability by proving that [name of defendant]

regarded [him/her] as having a disability. [Name of plaintiff] is “regarded as”

having a disability if [he/she] proves that [name of defendant] [describe adverse

employment action] [him/her] because of an actual or perceived impairment – even

if the actual or perceived impairment did not limit a major life activity and even if

[name of defendant] did not think that the actual or perceived impairment limited a

major life activity. [But [name of plaintiff] cannot be “regarded as” disabled if

[his/her] impairment is transitory and minor. A “transitory” impairment is one

that’s expected to last six months or less.]]

Definition of “Qualified Individual”

The second element requires that [name of plaintiff] prove by a

preponderance of the evidence that [he/she] was “qualified” for the job at the time

of the challenged employment decision. This means that [name of plaintiff] must

show that [he/she] had the skill, experience, education, and other job- related

requirements for [describe job], and could do the essential functions of the job –

with or without reasonable accommodation.

In this case, [name of plaintiff] claims that [he/she] was able to perform the

essential functions of [describe job] [with [describe accommodation provided]].

[Name of defendant] claims that [name of plaintiff] was unable to perform

[describe functions] [– even with [describe accommodation provided] –] and that

[this function/these functions] [was/were] essential to [describe job]. To the extent

that [name of plaintiff] claims that a particular function is not essential to the job,

[he/she] must prove that the function is not essential.

The essential functions of a position are the fundamental duties of that

position. The term “essential functions” does not include the position’s marginal

functions. To decide whether a function is essential to a particular position, you

may consider the following factors:

(a) whether the function’s performance is the reason the position

exists;

(b) whether there are a limited number of employees available to

perform the function;

(c) whether the function is highly specialized so that an employee in

the position is hired for the ability to perform the function;

(d) [name of defendant]’s judgment about which functions are

essential to the position;

(e) written job descriptions for the position;

(f) the amount of time an employee in the position spends performing

the function;

(g) the consequences of not requiring an employee in the position to

perform the function;

(h) [the terms of a collective-bargaining agreement]; or

(i) whether others who held the position were required to perform the

function.

No single factor controls your decision. You should consider all the

evidence to decide whether a function is essential to the job. [To decide whether

[name of plaintiff] was qualified to perform the essential job functions, you should

consider [his/her] abilities as they existed when [name of defendant] [describe

adverse employment action].]

[Direct Threat: [Name of Defendant] contends that [name of plaintiff] is

not a “qualified individual” because [name of plaintiff]’s [employment/continued

employment] [posed/would have posed] a direct threat to [name of plaintiff]

[and/or] to [name of defendant]’s other employees. A “direct threat” is a significant

risk to the health or safety of [name of plaintiff] or others that cannot be eliminated

by a reasonable accommodation. Therefore, you must decide whether [name of

plaintiff] could safely perform the essential functions of [his/her] job with or

without a reasonable accommodation. In determining whether [name of plaintiff]

[posed/would have posed] a direct threat, you may consider:

(a) the nature of the risk of [plaintiff’s condition];

(b) the severity of the risk of [plaintiff’s condition];

(c) the duration of the risk of [plaintiff’s condition];

(d) how likely it is that harm will occur due to [plaintiff’s condition];

and

(e) whether the potential harm due to [plaintiff’s condition] is likely to

occur in the near future.

[Name of plaintiff] has the burden to prove that [he/she] [did not pose/would

not have posed] a direct threat to [himself/herself] [and/or] to [name of

defendant]’s other employees. If you find that [name of plaintiff] could not safely

perform the essential functions of [his/her] job with or without a reasonable

accommodation, then [name of plaintiff] is not a “qualified individual.”]

Definition of “Because of Plaintiff’s Disability”

Finally, if you find that [name of plaintiff] had a “disability,” was a

“qualified individual,” and that [name of defendant] [describe adverse employment

action], you must decide whether [name of defendant] took that action “because

of” [name of plaintiff]’s disability.

To prove that [name of defendant] [describe adverse employment action]

because of [name of plaintiff]’s disability, [name of plaintiff] does not have to

prove that [his/her] disability was the only or main reason that [name of defendant]

[describe adverse employment action]. [Name of defendant] cannot avoid liability

just because some other factor played a role in its decision. To determine that

[name of defendant] [describe adverse employment action] because of [name of

plaintiff]’s disability, you must decide that [name of defendant] would not have

[describe adverse employment action] if [name of plaintiff] had not had a disability

but everything else had been the same.

[Name of defendant] denies that [he/she/it] [describe adverse employment

action] because of [name of plaintiff]’s disability and claims that [he/she/it] made

the decision for [another reason, other reasons]. An employer may not discriminate

against an employee because of the employee’s disability, but an employer may

[describe adverse employment action] an employee for any other reason, good or

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

to [describe adverse employment action] [name of plaintiff], and if you find that

the decision was not made because of [name of plaintiff]’s disability, you must not

second guess that decision, and you must not substitute your own judgment for

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

If you find that [name of plaintiff] has proved each of the elements [he/she]

must prove, you must consider the issue of [his/her] 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 [describe adverse employment

action], 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 [describe adverse

employment action] 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 must determine what amount will fairly compensate [him/her] for those

claims. 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.]

[Punitive Damages: [Name of plaintiff] also asks you to award punitive

damages. The purpose of punitive damages is not to compensate [name of plaintiff]

but, instead, to punish [name of defendant] for wrongful conduct and to deter

similar wrongful conduct. You will only reach the issue of punitive damages if you

find for [name of plaintiff] and award [him/her] compensatory damages.

To be entitled to an award of punitive damages , [name of plaintiff] must

prove by a preponderance of the evidence that [name of defendant] acted with

either malice or with reckless indifference toward [name of plaintiff]’s federally

protected rights. Specifically, [name of plaintiff] must show that an employee of

[name of defendant], acting in a managerial capacity, either acted with malice or

with reckless indifference to [name of plaintiff]’s federally protected rights.

There is no bright -line rule about which employees act in a managerial

capacity. You must determine whether an employee acted in a “managerial

capacity” based upon the type of authority [name of defendant] gave the employee

and the amount of discretion that the employee has in what is done and how it is

accomplished.

To show that [name of defendant] acted with malice, [name of plaintiff]

must show that an employee acting in a managerial capacity knew that federal law

prohibits discrimination and discriminated against [name of plaintiff] anyway. To

show that [name of defendant] acted with reckless indifference to [name of

plaintiff]’s federally protected rights, [name of plaintiff] must show that an

employee acting in a managerial capacity acted with serious disregard for whether

the conduct violated federal law. Either malice or reckless indifference is sufficient

to entitle [name of plaintiff] to an award of punitive damages; [name of plaintiff]

need not prove both.

An employer may not be held liable for punitive damages because of

discriminatory acts on the part of its managerial employees where the managerial

employees’ acts are contrary to the employer’s good faith efforts to comply with

the law by implementing policies and programs designed to prevent unlawful

discrimination in the workplace. However, the mere existence of policies

prohibiting discrimination does not preclude punitive damages if the policies are

ineffective.

There is no single factor that determines whether [name of defendant] acted

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

protected rights. In determining whether to award punitive damages, you may

consider factors such as: [(1) whether [name of defendant] engaged in a pattern of

discrimination toward its employees]; [(2) whether [name of defendant] acted

spitefully or malevolently]; [(3) whether [name of defendant] showed a blatant

disregard for civil legal obligations]; [(4) whether [name of defendant] failed to

investigate reports of discrimination]; [(5) whether [name of defendant] failed to

take corrective action concerning discriminatory acts or comments by its

employees]; and [(6) whether the person accused of discrimination was included in

the employer’s decision making process concerning [name of plaintiff]’s

[discharge] [denied promotion].]

If you find that punitive damages should be assessed against [name of

defendant], you may consider the evidence regarding [name of defendant]’s

financial resources in fixing the amount of such damages.]

SPECIAL INTERROGATORIES TO THE JURY

Do you find from a preponderance of the evidence:

1. That [name of plaintiff] had a “disability?”

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] was a “qualified individual?”

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] [describe adverse employment action]?

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 defendant] took that action because of [name of plaintiff]’s

disability?

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 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? $_____________

6. 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 Nos. 5 or 6,

this ends your deliberations, and your foreperson should sign and date the last page

of this verdict form. If you awarded damages in response to Question Nos. 5 or 6

(or both), go to the next question.

7. That punitive damages should be assessed against [name of defendant]?

Answer Yes or No _____________

If your answer is “Yes,”

in what amount? $_____________]

SO SAY WE ALL.

___________________________

Foreperson’s Signature

DATE: ___________________