5th Cir. Pattern Jury Instr. (Civil) 11.1

132

directed verdict or summary judgment situation,” and

does not apply in a trial on the merits. Kanida v. Gulf

Coast Med. Pers. LP , 363 F.3d 568, 575 (5th Cir. 2004)

(quoting Powell v. Rockwell Int’l Corp. , 788 F.2d 279,

285 (5th Cir. 1986)).

A prima facie case requires the plaintiff to allege

facts showing that he or she: “(1) is a member of a

protected class; (2) was qualified for her position; (3)

was subject to an adverse employment action; and (4)

was replaced by someone outside the protected class,

or, in the case of disparate treatment, shows that others similarly situated were treated more favorably.” Id.;

Alkhawaldeh v. Dow Chem. Co. , 851 F.3d 422, 426 (5th

Cir. 2017) (quoting Bryan v. McKinsey & Co. , 375 F.3d

358, 360 (5th Cir. 2004)).

B. Charge

Plaintiff [name] claims that:

(For a § 2(a) case) [he/she] would not have been

[specify adverse employment action] but for [his/her]

[protected trait].

OR

(For a § 2(m) case) Defendant [employer’s name]’s

[specify adverse employment action] of Plaintiff [name]

was motivated by the Plaintiff [name]’s [protected trait].

The employer, Defendant [name], denies Plaintiff

[name]’s claims, and contends [specify contentions].

It is unlawful for an employer to discriminate

against an employee because of the employee’s [specify

protected trait]. An employer may, however [specify

adverse employment action] an employee for other

reasons, good or bad, fair or unfair.

11.1EMPLOYMENT CLAIMS

133

To prove unlawful discrimination, Plaintiff [name]

must prove by a preponderance of the evidence that:

1. Defendant [name] [specify adverse employment

action] Plaintiff [name];

1

and

2. (For a § 2(a) case) Defendant [name] would

not have [specify adverse employment action]

Plaintiff [name] in the absence of—in other

words, but for—[his/her] [protected trait].

Plaintiff [name] does not have to prove that

unlawful discrimination was the only reason

Defendant [name] [specify adverse employment

action] [him/her]. But Plaintiff [name] must

prove that Defendant [name]’s decision to

[specify adverse employment action] [him/her]

would not have occurred in the absence of such

discrimination.

OR

(For a § 2(m) case)

2

Defendant [name]’s

[specify adverse employment action] of Plaintiff

[name] was motivated by [his/her] [protected

trait].

Plaintiff [name] does not have to prove that

1In many cases, there is no dispute that the plaintiff experienced an

adverse employment action. The first element can simply identify the

employment action at issue, such as job termination, failure to promote,

demotion, or transfer. If there is a factual dispute about whether the challenged action was an adverse employment action, the first element should

be adjusted using the definition of adverse employment action set out

above, and the jury questions should include this issue.

2The defendant may be entitled to a mixed-motive-affirmative-defense instruction. The mixed-motive affirmative defense should be

submitted only when properly raised and when there is credible evidence

from which a reasonable jury could conclude that a mix of permissible and

impermissible reasons factored into the employer’s decision-making

process. When this defense applies, the standard is whether the defendant

shows that it would have made the same decision regardless of the

plaintiff ’s protected status. See Pattern Jury Instruction 11.13.