5th Cir. Pattern Jury Instr. (Civil) 11.21

266

[name] but for [his/her] engaging in [FMLA-protected

activity].

2

Defendant [name] denies the claims and contends

that [specify contentions].

It is unlawful for an employer to retaliate against

an employee for engaging in FMLA-protected activity.

3

FMLA-protected activity includes, but is not limited

to, [requesting or taking leave] [having the employer

maintain certain employment benefits during leave]

[once leave is completed, seeking restoration to the position the employee held when leave began or to a position with equivalent employment benefits, pay, and

other terms and conditions of employment].

4

To prevail, Plaintiff [name] must prove by a

preponderance of the evidence that:

1. [he/she] engaged in FMLA-protected activity;

2. Defendant [name] [specify adverse employment

action] [him/her]; and

3. Defendant [name] would not have [specify

adverse employment action] Plaintiff [name]

but for [his/her] engaging in FMLA-protected

activity.

5

2In most cases, there will not be a factual dispute about whether the

plaintiff experienced an adverse employment action. If there is a dispute,

the jury charge and question should be adopted, using the definition of

“adverse employment action” at Pattern Jury Instruction 11.5.

329 U.S.C. § 2615(a)(1) and (2). If the employee’s eligibility for leave

or lack of proper notice to the employer is disputed, paragraphs 4 through

8 of Pattern Jury Instruction 11.19 may be used.

429 U.S.C. § 2612(a)(1) (entitlement to leave); 29 U.S.C. § 2614(a)(1)

(restoration to same or equivalent position); 29 U.S.C. § 2614(c)(1) (maintenance of group health-plan benefits).

5If a mixed-motive standard is used, the charge could read:

11.21EMPLOYMENT CLAIMS

267

Plaintiff [name] does not have to prove that [his/

her] FMLA-protected activity is the only reason Defendant [name] [specify adverse employment action]

Plaintiff [name]. But Plaintiff [name] must prove that

[he/she] would not have been [specify adverse employment action] in the absence of [his/her] FMLA-protected

activity.

If you disbelieve the reason Defendant [name] has

given for its decision, you may, but are not required to,

infer that Defendant [name] would not have [specify

adverse employment action] Plaintiff [name] but for

[his/her] FMLA-protected activity.

Plaintiff [name] claims that [his/her] engaging in [FMLA-protected activity] was a motivating factor in Defendant [name]’s decision to [specify adverse employment action] [him/her].

Defendant [name] denies the claims and contends that [specify

contentions].

It is unlawful for an employer to retaliate against an employee

for engaging in FMLA-protected activity.

FMLA-protected activity includes, but is not limited to, [requesting or taking leave] [having the employer maintain certain employment benefits during leave] [once leave is completed, seeking restoration to the position the employee held when leave began or to a

position with equivalent employment benefits, pay, and other terms

and conditions of employment].

To prevail, Plaintiff [name] must prove by a preponderance of the

evidence that:

1. [he/she] engaged in FMLA-protected activity;

2. Defendant [name] [specify adverse employment action] [him/her];

and

3. Plaintiff [name]’s engaging in FMLA-protected activity was a

motivating factor in Defendant [name]’s decision to [specify adverse

employment action] [him/her].

Plaintiff [name] does not have to prove that [his/her] FMLA-protected activity is the only reason Defendant [name] [specify adverse

employment action] Plaintiff [name]. But Plaintiff [name] must prove that

[he/she] would not have been [specify adverse employment action] in the

absence of [his/her] FMLA-protected activity .

If you disbelieve the reason Defendant [name] has given for its decision, you may , but are not required to, infer that Defendant [name]’s decision to [specify adverse employment action] Plaintiff [name] was motivated

by Plaintiff [name]’s FMLA-protected activity .