US-CA11 · jury_instructions

11th Cir. Pattern Jury Instr. (Civil) 4.15

Family and Medical Leave Act – Retaliation Claims –

activein force · 2025-12-01 – presentact-effective-date

29 U.S.C. §§ 2601-2654

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

federal law called the Family and Medical Leave Act, also known as the FMLA,

by [describe challenged employment action] because [describe protected activity].

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

the defendant’s defense].

Under the FMLA, an eligible employee may take up to 12 weeks of leave

during any 12-month period for [a serious health condition/the birth or adoption of

a child/the care of a spouse, child, or parent who has a serious health

condition/active-duty orders/the care of a covered service member]. This leave is

called FMLA leave. It is unlawful for an employer to take action against an

employee because the employee exercises [his/her] FMLA rights. The FMLA does

not require an employer to pay an employee while on FMLA leave.

To succeed on [his/her] claim against [name of defendant], [name of

plaintiff] must prove each of the following facts by a preponderance of the

evidence:

First: [Name of plaintiff] was employed by [name of defendant];

Second: [Name of plaintiff] was eligible for FMLA leave;

Third: [Name of plaintiff] was entitled to FMLA leave;

Fourth: [Name of plaintiff] [describe protected activity];

Fifth: [Name of defendant] [described challenged employment

action];

Sixth: [Describe challenged employment action] was an “adverse

employment action;” and

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

plaintiff]’s [described protected activity].

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

answer questions about these factual issues.]

[The parties have agreed that [name of plaintiff] was employed by [name of

defendant]. You should consider that a proven fact.]

For the second element, [name of plaintiff] was “eligible” for FMLA leave

if:

(a) [name of plaintiff] worked for [name of defendant] for at least 12

months before the date any FMLA leave was to begin, and

(b) [name of plaintiff] worked for [name of defendant] for at least

1,250 hours during the 12-month period before the date any FMLA

leave was to begin.

For the third element, [name of plaintiff] was “entitled” to FMLA leave if:

(a) [Name of plaintiff] had an FMLA-qualifying reason, and

(b) [Name of plaintiff] gave [name of defendant] proper notice of

[his/her] need for leave.

[A serious health condition that prevented [name of plaintiff] from

performing the functions of [his/her] job/The birth or adoption of a child/The care

of a spouse, child, or parent who has a serious health condition/Following active -

duty orders/The care of a covered service member] is an “FMLA -qualifying

reason.”

[A “serious health condition” is an illness, injury, impairment, or physical or

mental condition that involves either inpatient care in a hospital, hospice, or

residential medical facility, or continuing treatment by a healthcare provider.

Ordinarily, unless complications arise, the common cold, the flu, earaches, upset

stomach, minor ulcers, headaches other than migraine, routine dental or

orthodontia problems, periodontal disease, and other similar conditions do not

meet the definition of a “serious health condition” and do not qualify for FMLA

leave.]

[Name of plaintiff] “gave proper notice” to [name of defendant] of [his/her]

need for FMLA leave if [he/she] notified [name of defendant] of the need to take

FMLA leave in a timely manner and in a way that alerted [name of defendant] that

[his/her] absence might qualify as an FMLA leave – even if [name of plaintiff] did

not expressly mention the FMLA.

If [name of plaintiff] knew of the need for leave more than 30 days before

the leave was to begin, [he/she] was required to give [name of defendant] notice at

least 30 days before the leave was to begin. If [name of plaintiff] knew of the need

for leave less than 30 days before the leave was to begin, [he/she] was required to

give [name of defendant] notice as soon as was reasonably possible.

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

[describe protected activity]. If you find that [name of plaintiff] [describe protected

activity], then you have found that [he/she] engaged in “FMLA-protected activity.”

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

[describe challenged employment action].

For the sixth element, you must decide whether [describe challenged

employment action] is an “adverse employment action.” An “adverse employment

action” is any type of action that would have made a reasonable employee reluctant

to exercise FMLA rights. Put another way, if a reasonable employee would be less

likely to exercise [his/her] FMLA rights because [he/she] knew that [name of

defendant] would [describe adverse employment action], then that action is an

adverse employment action. If the employment action would not make it less likely

for a reasonable employee to exercise FMLA rights, it is not an adverse

employment action.

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

[describe adverse employment action] because of [name of plaintiff]’s FMLA -

protected activity. To prove that [name of defendant] [describe adverse

employment action] because of [name of plaintiff]’s FMLA-protected activity ,

[name of plaintiff] does not have to prove that [his/her] FMLA -protected activity

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 FMLA -

protected activity, you must decide that [name of defendant] would not have

[describe adverse employment action] if [name of plaintiff] had not engaged in

FMLA-protected activity 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 [describe protected activity] and claims that

[he/she/it] took the action for [another reason/other reasons]. An employer may not

take an adverse action against an employee because of the employee’s FMLA -

protected activity, 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 discharge/not to promote] [name of

plaintiff], and you find that the decision was not made because of [name of

plaintiff]’s FMLA-protected activity, 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 element [he/she] must

prove, you must consider the issue of [name of plaintiff]’s alleged damages.

[Name of plaintiff] can recover lost wages and benefits, or [he/she] can

recover other expenses incurred because of [name of defendant]’s actions – but not

both.

If [name of plaintiff] proved that [he/she] lost wages or benefits because of

[name of defendant]’s FMLA violation, then [name of plaintiff] may recover net

lost wages and benefits from the date of [describe challenged employment action]

to the date of your verdict.

If you find that [name of plaintiff] did not directly lose pay or benefits

because of [name of defendant]’s FMLA violation, then you may award [name of

plaintiff] the actual monetary loss that directly resulted from [name of defendant]’s

FMLA violation. This amount of damages cannot exceed [12/26] weeks of [name

of plaintiff]’s wages or salary.

[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 [name of plaintiff]’s

claim for lost pay, 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 de fendant] 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.]

SPECIAL INTERROGATORIES TO THE JURY

Do you find from a preponderance of the evidence:

1. That [name of plaintiff] was employed by [name of defendant]?