5th Cir. Pattern Jury Instr. (Civil) 11.5

156

prove that he or she had a reasonable good-faith belief

that the practice was unlawful under Title VII.

4

B. Charge

4Long v. Eastfield Coll. , 88 F .3d 300, 304 (5th Cir. 1996). When the

employee has opposed an employment practice that is not unlawful under

Title VII, the court should instruct the jury that the employee’s actions

must be based on a reasonable, good-faith belief that the practice opposed

actually violated Title VII, even if that belief was ultimately mistaken.

Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268 (2001). In EEOC v. Rite Way

Serv., Inc. , 819 F .3d 235, 237 (5th Cir. 2016), the Fifth Circuit stated that

in Clark County School District , the Supreme Court did not decide whether

a reasonable-belief standard applies to an employee’s retaliation claim,

because in that case, the Court found that no one could reasonably believe

that the incident violated Title VII. The Fifth Circuit held that it is generally settled in the circuit courts that “a plaintiff contending that she was

retaliated against for proactively reporting employment discrimination

need not show that the discrimination rose to the level of a Title VII violation, but must at least show a reasonable belief that it did.” Rite Way

Serv., 819 F .3d at 237 (citing 2 L EX K. L ARSON,E MPLOYMENT DISCRIMINATION

§ 34.02[2], at 34–40 (2d ed. 2015)). A reasonable, good-faith belief that

discrimination occurred requires a subjective belief that the employer’s

behavior was discriminatory . In addition, the belief must be objectively

reasonable in light of the circumstances. If the plaintiff employee engaged

in participation-clause activity , that activity is protected under Title VII,

and no good-faith inquiry is necessary . See Pettway v. Am. Cast Iron Pipe

Co., 411 F .2d 998, 1006–07 (5th Cir. 1969) (an employee’s basis, or lack of

basis, for filing an EEOC complaint is irrelevant in evaluating a retaliation claim); see also Jones v. Flagship Intern. , 793 F .2d 714, 725–26 (5th

Cir. 1986) (citing Pettway ). Other circuits agree that the “reasonable,

good-faith belief” test does not apply to a retaliation claim based on the

participation clause. See, e.g. , Slagle v. Cty. of Clarion , 435 F .3d 262 (3d

Cir. 2006); Johnson v. Univ. of Cincinnati , 215 F .3d 561 (6th Cir. 2000)

(stating that the participation clause’s protections “are not lost if the employee is wrong on the merits of the charge” or even “if the contents of the

charge are malicious or defamatory”); Brower v. Runyon , 178 F .3d 1002,

1006 (8th Cir. 1999) (“The underlying charge need not be meritorious for

related activity to be protected under the participation clause.”). The

Seventh and Second Circuits have held that the “good faith, reasonable”

requirement applies in claims brought under both opposition and the

participation clauses. See Mattson v. Caterpillar , Inc. , 359 F .3d 885 (7th

Cir. 2004); see also Ray v. Ropes & Gray LLP , 799 F .3d 99 (1st Cir. 2015)

(a plaintiff need not reasonably believe in the validity of the underlying

charges but leaving it open whether the “good faith” requirement applies

to a participation-clause claim); Cox v. Onondaga Cty. Sherriff’s Dep’t , 760

F .3d 139, 148 (2d Cir. 2014) (applying the good-faith requirement in retaliation claims without distinguishing claims based on the opposition clause

or the participation clause).

11.5EMPLOYMENT CLAIMS

157

Plaintiff [name] claims that [he/she] was retaliated

against by Defendant [name] for engaging in activity

protected by Title VII. Plaintiff [name] claims that [he/

she] [specify protected activity]. Plaintiff [name] claims

that Defendant [name] retaliated against [him/her] by

[specify adverse action].

Defendant [name] denies Plaintiff [name]’s claims

and contends that [specify contentions].

It is unlawful for an employer to retaliate against

an employee for engaging in activity protected by Title

VII. To prove unlawful retaliation, Plaintiff [name]

must prove by a preponderance of the evidence that:

1. Plaintiff [name] engaged in [specify protected

activity];

5

5If there are factual disputes about whether the plaintiff experienced

an adverse employment action or whether he or she engaged in activity

protected by Title VII, the charge and jury questions should be adjusted

accordingly . Whether activity is protected by Title VII will generally be

determined by the court as a matter of law, particularly for participation-clause cases. If there is no dispute or the issues are not contested, the

charge may simply specify the adverse action and protected activity at

issue. If there are disputes, the charge should be adjusted using the defini-

tions of protected activity and adverse employment action.

If there is a dispute in an opposition-clause case about whether the

plaintiff engaged in protected activity , the following instruction may be

used:

For the first element, Plaintiff [name] claims that [he/she] engaged

in protected activity when [he/she] [specify opposition clause

activity]. That action is “protected activity” if it was based on

Plaintiff [name]’s good-faith, reasonable belief that Defendant

[name] discriminated against [him/her/another employee] because of

[his/her] [protected trait]. To show a good-faith belief, Plaintiff

[name] must show that [he/she] honestly believed that Defendant

[name] discriminated against [him/her/another employee] because of

[his/her] [protected trait]. To show a reasonable belief, Plaintiff

[name] must show that a reasonable person would, under the circumstances, believe that Defendant [name] discriminated against

[him/her/another employee] because of [his/her] [protected trait].

Plaintiff [name] does not have to prove that Defendant [name] actually discriminated against [him/her/another employee] because of