11th Cir. Pattern Jury Instr. (Civil) 4.18

Discrimination – Including “Same-Decision” Defense

The Uniformed Services Employment and Reemployment Rights Act, also

called USERRA, prohibits an employer from discriminating against an employee

in the terms and conditions of the employee’s employment because the employee

[is a member of/applies to be a member of/performs service in/has performed

service in/applies to perform service in/has an obligation to perform service in] a

uniformed service.

[Name of plaintiff] claims that [his/her] [membership in/application to be a

member of/performance of service in/application to perform service in/obligation

to perform service in] a uniformed service was a motivating factor in [name of

defendant]’s decision to [discharge [him/her] from employment/denying [him/her]

a promotion].

[Name of defendant] denies [name of plaintiff]’s claim 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 plaintiff] [was a member of/applied to be a member

of/performed service in/applied to perform service in/had an

obligation to perform service in] a uniformed service;

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

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

Third: [Name of plaintiff]’s [membership/application for

membership/service/application for service/obligation for

service] in a uniformed service was a motivating factor in

[name of defendant]’s decision to take that action.

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

answer questions about these factual issues.]

[Name of Armed Forces Branch/Army National Guard/Air National Guard]

is a “uniformed service.”

If you find that [name of defendant] [discharged [name of plaintiff] from

employment/denied [name of plaintiff] a promotion], you must decide whether

plaintiff’s [membership/application for membership/service/application for

service/obligation for service] was a motivating factor in [name of defendant]’s

decision.

To prove that [name of plaintiff]’s [membership/application for

membership/service/application for service/obligation for service] in a uniformed

service was a “motivating factor” in [name of defendant]’s decision, [name of

plaintiff] does not have to prove that [his/her] [membership/application for

membership/service/application for service/obligation for service] in a uniformed

service was the only or main reason that [name of defendant] [discharged [name of

plaintiff] from employment/denied [name of plai ntiff] a promotion]. It is enough if

[name of plaintiff] proves that [his/her] [membership/application for

membership/service/application for service/obligation for service] in a uniformed

service influenced [name of defendant]’s decision.

[Name of defendant] claims that [name of plaintiff]’s

[membership/application for membership/service/application for service/obligation

for service] in a uniformed service 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 [membership/application for

membership/service/application for service/obligation for service] in a uniformed

service cannot be a motivating factor in a decision to [discharge/decline to

promote] an employee , an employer may [discharge/decline to promote] 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 [name of defendant]’s decision was not motivated by

[name of plaintiff]’s [membership/application for membership/service/application

for service/obligation for service] in a uniformed service, 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.

[Cat’s Paw (if applicable, see annotations): [Name of plaintiff] claims that

[name of defendant]’s decision [to discharge/not to promote] [name of plaintiff]

was based on the recommendation of [name of plaintiff]’s supervisor and that

[name of plaintiff]’s [membership in/application to be a member of/performance of

service in/application to perform service in/obligation to perform service in] a

uniformed service was a motivating factor in the supervisor’s recommendation. If

[name of plaintiff]’s supervisor recommended that [name of defendant]

[discharge/decline to promote] [name of plaintiff] and [name of plaintiff]’s

[membership in/application to be a member of/performance of service

in/application to perform service in/obligation to perform service in] a uniformed

service motivated the supervisor’s recommendation, the supervisor’s

recommendation can be a “motivating factor” behind [name of defendant]’s

employment decision – even if the supervisor did not make the ultimate decision to

[discharge/decline to promote] [name of plaintiff].

But [name of plaintiff]’s [membership in/application to be a member

of/performance of service in/application to perform service in/obligation to

perform service in] a uniformed service can be a motivating factor in [name of

defendant]’s decision only if you find that [name of plaintiff] has proved each of

the following by a preponderance of the evidence:

(a) the supervisor acted with the intent to make [name of defendant]

[discharge/deny a promotion to] [name of plaintiff] (which means

that the supervisor wanted [name of defendant] to [discharge/deny

a promotion to] [name of plaintiff]), or the supervisor believed that

[his/her] actions would cause [name of defendant] [to

discharge/deny a promotion to] [name of plaintiff];

(b)[name of plaintiff]’s [membership in/application to be a member

of/performance of service in/application to perform service

in/obligation to perform service in] a uniformed service was a

motivating factor behind the supervisor’s actions; and

(c) there was a direct relationship between the supervisor’s actions

and [name of plaintiff]’s [discharge/denial of promotion].]

[Including Affirmative Defense: If you find in [name of plaintiff]’s favor

for each element that [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 [discharged [name of plaintiff] from employment/denied [name of plaintiff] a

promotion] even if [name of defendant] had not taken [name of plaintiff]’s

[membership/application for membership/service/application for service/obligation

for service] in a uniformed service into account. If you find that [name of plaintiff]

[would have been dismissed/would not have been promoted] for [a] reason[s] other

than [his/her] [membership/application for membership/service/application for

service/obligation for service] in a uniformed service, you must make that finding

in your verdict.]

If you find in [name of plaintiff]’s favor for each element that [he/she] must

prove, [and against [name of defendant] on this defense ,] 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 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.

To the extent you find that [name of plaintiff] proved damages by a

preponderance of the evidence, you must consider only net lost wages and benefits

from the date of the [discharge/denial of promotion] to the date of your verdict.

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.

[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 posi tion [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.]

[Willful Violation: If you find in [name of plaintiff]’s favor and award

[him/her] compensatory damages, you must decide whether [name of defendant]

willfully violated the law. If [name of defendant] knew that [his/her/its]

employment decision violated the law, or acted in reckless disregard of that fact,

then [his/her/its] conduct was willful. If [name of defendant] did not know, or

knew only that the law was potentially applicable and did not act in reckless

disregard as to whether [his/her/its] conduct was prohibited by the law, then [name

of defendant]’s conduct was not willful.]

SPECIAL INTERROGATORIES TO THE JURY

Do you find from a preponderance of the evidence:

1. That [name of plaintiff] [was a member of/applied to be a member

of/performed service in/applied to perform service in/had an obligation to

perform service in] a uniformed service?

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 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.

3. That [name of plaintiff]’s [membership/application for

membership/service/application for service/obligation for service] in a

uniformed service was a motivating factor in [name of defendant]’s decision

to take that 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] 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

[membership/application for membership/service/application for

service/obligation for service] in a uniformed service 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.]

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? $_____________

[If you did not award damages in response to Question No. 5, 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

No. 5, go to the next question.

6. That [name of defendant] willfully violated the law?

Answer Yes or No _____________]

SO SAY WE ALL.

___________________________

Foreperson’s Signature

DATE: ___________________