9th Cir. Model Jury Instr. (Civil) 9.9

As previously explained, the plaintiff [name] has the burden of proving that the act[s] of the defendant [name] deprived the plaintiff [name] of particular rights under the United States Constitution. In this case, the plaintiff [name] alleges the defendant [name] deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].

Under the First Amendment, a public employee has a qualified right to speak on matters of public concern. I instruct you that the plaintiff [name]’s speech was on a matter of public concern. To prove the defendant [name] deprived the plaintiff [name] of this First Amendment right, the plaintiff [name] must prove the following additional elements by a preponderance of the evidence:

First, the plaintiff [name] spoke as a private citizen and not as part of [his] [her] [other pronoun] official duties as a public employee;

Second, the defendant [name] took an adverse employment action against the plaintiff; and

Third, the plaintiff [name]’s speech was a substantial or motivating factor for the adverse employment action.

An action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker from engaging in protected activity.

A substantial or motivating factor is a significant factor, though not necessarily the only factor.

If the plaintiff [name] establishes each of the foregoing elements, the burden shifts to the defendant [name] to prove by a preponderance of the evidence that [the defendant [name] would have taken the action(s) in question, even in the absence of any motive to retaliate against the plaintiff [name]] [legitimate administrative interests in promoting efficient service-delivery and avoiding workplace disruption outweigh the plaintiff’s First Amendment interests]. If you find that the defendant [name] is able to demonstrate this, you must find for the defendant [name]. If you find that the defendant is not able to demonstrate this, you must find for the plaintiff [name].