5th Cir. Pattern Jury Instr. (Civil) 10.6

100

3. the [specify action] caused Plaintiff [name]’s

damages.

4

If Plaintiff [name] fails to prove any of these elements,

you must find for Defendant [name].

(If the parties stipulate that the employment

action was adverse):

[The parties have stipulated (agreed) that the

[specify action] was “adverse.” You must accept that

fact as proved.]

OR

4These elements are based on cases such as Oscar Renda Contracting, Inc. v. City of Lubbock , 577 F .3d 264, 271 (5th Cir. 2009) (listing these

elements). Two points must be noted.

First, the instructions set out the elements of the prima facie case

excluding the elements that should be decided as a matter of law before

trial. For example, there is a threshold issue under Garcetti whether the

plaintiff spoke as a citizen or pursuant to official duty . 547 U.S. at 419; see

also Lane v. Franks , 573 U.S. 228 (2014) (explaining Garcetti and noting

that “the mere fact that a citizen’s speech concerns information acquired

by virtue of his public employment does not transform that speech into

employee—rather than citizen—speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of

an employee’s duties, not whether it merely concerns those duties”). The

prima facie case elements listed in summary judgment opinions also

include the need to prove that the speech was protected under Pickering v.

Board of Education , 391 U.S. 563, 568 (1968). This is a question of law.

Buchanan v. Alexander , 919 F .3d 847, 853 (5th Cir. 2019). There may be

instances, however, in which there are disputes about historical facts that

should be submitted to the jury . For example, in Kinney v. Weaver , 367

F .3d 337 (5th Cir. 2004), the Fifth Circuit addressed the Pickering issues

as a mixed law-and-fact question, noting that “the governmental interests

at stake in a particular case necessarily depend on the facts of the case.”

Id. at 363. If material historical facts are disputed, the court should

consider submitting them to the jury for resolution.

Second, a more frequent articulation of the causation element is

that the speech must be a “substantial or motivating factor.” Winn v. City

of New Orleans , 620 F . App’x 270 (5th Cir. 2015). This language is consistent with Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , in which the

Supreme Court of the United States observed that causation first requires

proof that the speech was a ‘‘ ‘substantial factor’ or to put it in other

words, that it was a ‘motivating factor.’ ” 429 U.S. 274, 287 (1977). The

pattern uses the simple language that the speech must “motivate,” but

then explains the element consistent with Mt. Healthy .

10.6CIVIL RIGHTS — 42 U.S.C. § 1983

101

(If the parties dispute whether the employment action was adverse):

[As to the first element—whether the [specify action] was “adverse”—adverse employment actions

include discharges, demotions, refusals to hire, refusals

to promote, and reprimands.

5

They can also include

transfers if they would be equivalent to a demotion. To

be equivalent to a demotion, a transfer need not result

in a decrease in pay, title, or grade; it can be a demotion if the new position proves objectively worse than

the former position, such as being less prestigious or

less interesting or providing less room for

advancement.

6,7

]

As to the second element, to prove Plaintiff [name]’s

speech motivated Defendant [name]’s [specify action],

Plaintiff [name] must show the speech was a substantial

factor. In other words, Plaintiff [name] must show that

[his/her] speech was a motivating factor in Defendant

[name]’s decision to [specify action].

8

Plaintiff [name]

5Juarez v. Aguilar , 666 F .3d 325 (5th Cir. 2011) (citing Sharp v. City

of Houston , 164 F .3d 923, 933 (5th Cir. 1999)).

6Sharp, 164 F .3d at 933.

7The instruction is based on numerous cases decided by the Fifth

Circuit. See, e.g. , Sharp, 164 F .3d at 933. But in Burlington North and

Santa Fe Railway Co. v. White , the Supreme Court adopted a different

test in the Title VII context. 548 U.S. 53, 68 (2006). To date, the Fifth

Circuit has not adopted the Burlington standard for adverse employment

actions in the First Amendment context. Johnson v. Halstead , 916 F .3d

410, 422 n.5 (5th Cir. 2019) (“It is not clearly established whether Burlington’s ‘materially adverse’ standard applies to retaliation for protected

speech.”). In addition, courts should be aware that the Fifth Circuit has

adopted more precise tests depending on the nature of the employee’s job.

For example, in the educational context, the Fifth Circuit “has held that

‘actions such as decisions concerning teaching assignment, pay increases,

administrative matters, and departmental procedures, while extremely

important to the person who has dedicated his or her life to teaching, do

not rise to the level of a constitutional deprivation.’ ” DePree v. Saunders ,

588 F .3d 282, 287–88 (5th Cir. 2009) (citing Harrington v. Harris , 118 F .3d

359, 365 (5th Cir. 1997) (citation and internal punctuation omitted)).

8Mt. Healthy City Sch. Dist. Bd. of Educ. , 429 U.S. at 287.