9th Cir. Model Jury Instr. (Civil) 10.2

Affirmative Defense of “Same Decision”

For the plaintiff [name]’s claim that [he] [she] [other pronoun] was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] by the defendant [name] because of the plaintiff [name]’s [race] [color] [religion] [sex] [national origin], the plaintiff [name] has the burden of proving the following elements by a preponderance of the evidence:

First, the plaintiff [name] was [discharged] [not hired] [not promoted] [demoted] [state other adverse action] by the defendant [name]; [and]

[Second, the defendant [name] [discharged] [failed to hire] [failed to promote] [demoted] [state other adverse action] the plaintiff because of the plaintiff [name]’s [race] [color] [religion] [sex] [national origin] [.] [;]]

[or]

[Second, the plaintiff [name]’s [race] [color] [religion] [sex] [national origin] was a motivating factor in the defendant [name]’s decision to [discharge] [not hire] [not promote] [demote] [state other adverse action] the plaintiff] [.] [;]

[Third, the plaintiff [name] was qualified for [his] [her] [other pronoun] position [.] [;] [and]

[Fourth, similarly situated individuals outside the plaintiff [name]’s [race] [color] [religion] [sex] [national origin] were treated more favorably.]

The defendant [name] has the burden of proving by a preponderance of the evidence both that the defendant [name]’s decision to [state adverse action] also was motivated by a lawful reason and that the defendant [name] would have made the same decision to [state adverse action] even if the plaintiff [name]’s [race] [color] [religion] [sex] [national origin] had played no role in the defendant [name]’s decision to [state adverse action].