5th Cir. Pattern Jury Instr. (Civil) 10.13

To recover compensatory damages for mental and

emotional distress,

1

Plaintiff [name] must prove that

[he/she] has suffered a specific discernable injury with

credible evidence. Hurt feelings, anger, and frustration

are part of life and are not the types of harm that could

support a mental-anguish award. Evidence of mental

anguish need not be corroborated by doctors, psychologists, or other witnesses, but Plaintiff [name] must support [his/her] claims with competent evidence of the

nature, extent, and duration of the harm. Damages for

mental or emotional distress must be based on the evidence at trial. They may not be based on speculation or

sympathy.

2

1Under the Prison Litigation Reform Act, a plaintiff who was

incarcerated or detained at the time suit was filed cannot recover damages for mental or emotional distress unless he or she also shows “physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e); see

Janes v. Hernandez , 215 F .3d 541, 543 (5th Cir. 2000) (holding that the

limitations of the PLRA apply only to suits filed while the plaintiff is a

prisoner). This instruction, therefore, is only proper as to such a plaintiff

if the evidence has shown physical injury or a sexual act.

2See Brady v. Fort Bend Cty. , 145 F .3d 691, 718 (5th Cir. 1998) (quoting Carey v. Piphus , 435 U.S. 247, 264 n.20 (1978)); Patterson v. P .H.P .

Healthcare Corp. , 90 F .3d 927, 938, 940 (5th Cir. 1996)); see also V adie v.

Miss. State Univ. , 218 F .3d 365, 377–78 (5th Cir. 2000).

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11

EMPLOYMENT CLAIMS

1

OVERVIEW OF EMPLOYMENT DISCRIMINATION,

HARASSMENT, AND RETALIATION CASES: PRETEXT,

MIXED-MOTIVE, AND BUT-FOR STANDARDS

In many employment cases, the type of challenge to the

employment action is critical to instructing the jury on liability,

particularly on causation. Recent Supreme Court decisions have

clarified the causation standards for certain Title VII claims and

for ADEA claims. The causation standard for other employment

claims has received less recent attention and is currently less

clear. The jury instructions must follow the most recent case law

for the particular statute, facts, and issues presented, and must be

tailored to fit each particular case.

The key recent Supreme Court cases 2 that have clarified the

causation standard for certain Title VII claims and for ADEA

claims are:

1. Desert Palace, Inc. v. Costa , 539 U.S. 90 (2003): The

causation standard in Title VII discrimination cases under 42

U.S.C. § 2000e-2(m) is whether the plaintiff’s protected status

was a “motivating factor” in the challenged employment

decision.

2. Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167 (2009):

Motivating-factor instructions are not proper in ADEA cases.

The causation standard in such cases is whether the plaintiff’s

1The 2009 Fifth Circuit Labor and Employment Law Pattern Jury

Charge was developed by the Fifth Circuit Labor and Employment Law

Pattern Jury Charge Advisory Committee, under the guidance of the

Honorable Martin L.C. Feldman, United States District Judge for the

Eastern District of Louisiana and the Chair of the Committee on Pattern

Jury Instructions, Fifth Circuit District Judges Association. This updated

version owes a debt to the Committee’s hard work.

2This chapter does not use the “ id.” short-citation form because many

judges and lawyers cut and paste portions of the instructions into different documents, which would make an unlinked “ id.” citation confusing.

This chapter instead uses a short form with the case name and citation.

128

age was a “but-for” cause of the challenged employment

decision.

3. Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S. 338

(2013): In Title VII retaliation cases, the plaintiff’s protected

activity must be a “but-for” cause of the challenged employment decision. Motivating-factor instructions are not proper.

One frequently filed type of action in which the causation standard remains less clear is the Title VII disparate-treatment

discrimination claim under 42 U.S.C. § 2000e-2. A plaintiff’s claim

may arise under § 2000e-2(a), which makes it unlawful for an

employer to discriminate “because of” an impermissible factor, or

§ 2000e-2(m), which makes it unlawful for an employer to discriminate for impermissible reasons even if the employer’s motivations

for acting also included legitimate reasons. 3

There are many cases that describe a § 2(a) case as a “pretext”

case and a § 2(m) case as a “mixed-motive” case. This use of the

labels “pretext” and “mixed-motive,” while widespread and long-standing, can be confusing and is not used for § 2(a) or § 2(m)

cases in these instructions. More recent decisions have clarified

that labeling a Title VII disparate-treatment case as a “pretext

case” does not determine the causation standard. Both § 2(a) and

§ 2(m) allow what the Fifth Circuit has referred to as a

“permissive-pretext” instruction. 4 When a plaintiff shows that the

employer’s proffered reason for the employment decision is a

pretext for unlawful discrimination, the jury may, but is not

required to, infer discriminatory intent. This can happen under §

2(a) or § 2(m). To avoid confusion between this method of proof

and the alternative statutory theories, these instructions refer to

“§ 2(a) claims” or “§ 2(m) claims.”

As noted above, the law is now settled that § 2(m) claims

carry a “motivating-factor” causation standard. Section § 2(a)

claims appear to carry a “but-for” causation standard. 5 To

determine whether to instruct under § 2(a) or § 2(m), the court

3See Desert Palace, Inc. v. Costa , 539 U.S. 90, 94 (2003) (stating that

§ 2(m) “establishe[d] an alternative for proving that an unlawful employment practice has occurred.” (citation and quotation omitted)).

4See Ratliff v. City of Gainesville, Tex. , 256 F .3d 355, 361 (5th Cir.

2001). But see Kanida v. Gulf Coast Med. Pers. LP , 363 F .3d 568, 574 (5th

Cir. 2004) (recognizing that Ratliff is binding precedent but holding that

failure to give permissive pretext instruction is harmless error).

5Section 2(m) states that “except as otherwise provided in this

subchapter,” the motivating-factor test applies when an unlawful motive

exists “even though other factors also motivated the practice.” Section

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must decide whether, given the trial evidence, a reasonable jury

could conclude that the employer acted based on a single motivating factor or that the employer acted based on multiple factors, at

least one of which is legitimate.

Generally, a court gives a “but-for” causation instruction if it

determines that the trial evidence shows that: (1) the claim arises

under § 2(a); and (2) the only reasonable conclusion a jury could

reach is that discriminatory animus was either the sole cause or

played no role at all in the challenged employment action. In these

cases, the “same-decision” affirmative defense under 42 U.S.C.

§ 2000e-2(a)(g)(2) is not available.

A court generally gives the more relaxed “mixed-motive”

instruction if it determines that the trial evidence shows that: (1)

the claim arises under § 2(m); and (2) the jury could reasonably

find that discrimination is one of two or more reasons for the challenged action, at least one of which may be legitimate. Here, the

plaintiff has the burden of proving that discrimination was a

motivating factor in the challenged action, and the defendant may

invoke—if properly raised and supported—the “same-decision” affirmative defense. 6 If so, the defendant has the burden of proving

that it would have taken the same action without regard to the

discriminatory factor. 7

The most specific recent Fifth Circuit guidance on this point in

2(m) does not appear to abrogate § 2(a) and its “because of” standard. In

Gross and Nassar, the Supreme Court held that “because of” means “but-for” causation, and applied that standard to claims unaffected by § 2(m).

Gross, 557 U.S. at 176–77; Nassar, 133 S. Ct. at 2533. It is therefore appropriate to provide a “but-for” alternative for claims presented under §

2(a). Fisher v. Lufkin Indus. Inc. , 847 F .3d 752, 757 (5th Cir. 2017). This is

also consistent with those Fifth Circuit cases applying “but-for” to claims

traditionally referred to as “pretext” cases. See, e.g. , Guerra v. N.E. Indep.

Sch. Dist. , 496 F .3d 415, 418 (5th Cir. 2007) (pre- Gross ADEA claim

explaining that “but for” applies in “pretext” cases). The Committee notes

that causation continues to be a subject of judicial scrutiny .

6Garcia v. City of Hous. , 201 F .3d 672, 675 (5th Cir. 2000) (“[T]o

prove a mixed-motive defense the employer should be able to present

some objective proof that the same decision would have been made.”).

Matthew R. Scott and Russell D. Chapman, Much Ado About Nothing—

Why Desert Palace Neither Murdered McDonnell Douglas Nor Transformed

All Employment Cases to Mixed Motive , 36 St. Mary’s L.J. 395, 401 n.81

(2005).

7The plaintiff ’s burden of proving the “motivating factor” causation

standard is, of course, separate from the defendant’s burden to prove a

“mixed-motive” affirmative defense.

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a published opinion appears to be Smith v. Xerox Corp. , 602 F.3d

320 (5th Cir. 2010), abrogated in part by Univ. of Tex. Sw. Med.

Ctr. v. Nassar , 133 S. Ct. 2517 (2013). In Smith, the Fifth Circuit

stated:

“At some point in the proceedings ,...t h e District Court must

decide whether a particular case involves mixed motives.”

(quoting Price Waterhouse v. Hopkins , 490 U.S. 228, 247 n.12

(1989)). As explained by the en banc Ninth Circuit decision in

Desert Palace, “[o]nce at the trial stage, the plaintiff is required

to put forward evidence of discrimination ‘because of’ a

protected characteristic. After hearing both parties’ evidence,

the district court must decide what legal conclusions the evidence could reasonably support and instruct the jury

accordingly .... [T]he choice of jury instructions depends

simply on a determination of whether the evidence supports a

finding that just one—or more than one-factor actually

motivated the challenged decision.” Costa v. Desert Palace,

Inc., 299 F.3d 838, 856 (9th Cir. 2002) (en banc). Put another

way, if the district court has before it substantial evidence

supporting a conclusion that both a legitimate and an illegitimate (i.e., more than one) motive may have played a role in

the challenged employment action, the court may give a mixed-motive instruction.

Smith, 602 F.3d at 333.

The Committee recognizes that both Smith and the case it

cites, Costa v. Desert Palace , were abrogated or reversed in part by

the Supreme Court’s opinions in Nassar (on Title VII retaliation

claims) and Desert Palace (on the proper causation standard under

§ 2000e-2(m)). And both were decided before the more recent cases

from the Supreme Court. But the quoted paragraph remains the

most recent Fifth Circuit guidance on when to use the causation

standards in a Title VII discrimination case. See also Zamora v.

City of Houston , 798 F.3d 326 (5th Cir. 2015).

Finally, in the 2009 Pattern Jury Instructions, the uncertainty

in the case law about when the “but-for” or “motivating-factor”

causation standard was appropriate led the Committee to use the

statutory generic language “because of” or “on account of” in certain

non-mixed-motive instructions. When appropriate under current

law, the instructions provide both “but-for” and motivating-factor

alternatives in stating the charge elements and the accompanying

jury questions. Some instructions continue to use the generic statutory language—because of or on account of—in introducing particular liability theories.

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