Fill and Sign the Jury Instruction 111 Public Employee First Amendment Claim Discharge Failure to Promote Free Speech on Matter of Public Concern Form

1.1.1 Public Employee First Amendment Claim Discharge/Failure To Promote Free Speech On Matter Of Public Concern In this case the Plaintiff claims that the Defendants, while acting "under color" of state law, intentionally deprived the Plaintiff of the Plaintiff's rights under the Constitution of the United States. Specifically, the Plaintiff claims that while the Defendants were acting under color of authority of the State of [as members of the School Board of County] they intentionally violated the Plaintiff's constitutional rights under the First Amendment to the Constitution when the Defendants [discharged the Plaintiff from employment] [failed to promote the Plaintiff] because of the Plaintiff's exercise of the right of free speech. The Defendants deny that they violated the Plaintiff's rights in any way, and assert that [describe the Defendants' theory of defense or affirmative defenses, if any]. Under the First Amendment to the Constitution of the United States, every public employee has the right to "freedom of speech" addressing issues of public concern. In this case, therefore, if you find that the Plaintiff engaged in speech activity concerning , you are instructed that the subject of such speech activity was a matter of public concern; and, as a public employee, the Plaintiff could not legally be penalized because of the Plaintiff's exercise of First Amendment rights in discussing that subject of public concern. The law further provides that a person may sue in this Court for an award of money damages against anyone who, "under color" of any state law or custom, intentionally violates the Plaintiff's rights under the Constitution of the United States. In order to prevail on this claim, the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the actions of the Defendants were "under color" of the authority of the State; Second: That the Plaintiff engaged in speech activity concerning [describe the subject of public concern]; Third: That such speech activity was a substantial or motivating factor in the Defendants’ decision to [discharge the Plaintiff from employment] [not promote the Plaintiff]; and Fourth: That the Defendants' acts were the proximate or legal cause of damages sustained by the Plaintiff. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] [In this case the parties have stipulated or agreed that the Defendants acted "under color" of state law and you should, therefore, accept that fact as proven.] [A state or local official acts "under color" of the authority of the state not only when the official acts within the limits of lawful authority, but also when the official acts without or beyond the bounds of lawful authority. In order for unlawful acts of an official to be done "under color" of state law, however, the unlawful acts must be done while the official is purporting or pretending to act in the performance of official duty; that is, the unlawful acts must be an abuse or misuse of power which is possessed by the official only because of the position held by the official.] You should be mindful that the law applicable to this case requires only that a public employer refrain from taking action against a public employee because of the employee's exercise of protected First Amendment rights. So far as you are concerned in this case, a public employer may [discharge] [fail to promote] a public employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of the Defendants even though you personally may not approve of the action taken and would have acted differently under the circumstances. Neither does the law require that a public employer extend any special or favorable treatment to public employees because of their exercise of protected First Amendment rights. On the other hand, in order to prove that the Plaintiff's protected speech activities were a "substantial or motivating" factor in the Defendants' decision, the Plaintiff does not have to prove that the protected speech activities were the only reason the Defendants acted against the Plaintiff. It is sufficient if the Plaintiff proves that the Plaintiff’s protected speech activities were a determinative consideration that made a difference in the Defendants' adverse employment decision. Finally, for damages to be the proximate or legal result of wrongful conduct, it must be shown that, except for such conduct, the damages would not have occurred. [If you find in the Plaintiff's favor with respect to each of the facts that the Plaintiff must prove, you must then decide whether the Defendants have shown by a preponderance of the evidence that the Plaintiff would [have been dismissed] [not have been promoted] for other reasons even in the absence of the protected speech activity. If you find that the Plaintiff would [have been dismissed] [not have been promoted] for reasons apart from the speech activity, then your verdict should be for the Defendants.] If you find for the Plaintiff [and against the Defendants on their defense], you must then decide the issue of the Plaintiff's damages. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. [On the other hand, compensatory damages are not restricted to actual loss of time or money; they cover both the mental and physical aspects of injury - - tangible and intangible. Thus, no evidence of the value of such intangible things as emotional pain and mental anguish has been or need be introduced. In that respect it is not value you are trying to determine, but an amount that will fairly compensate the Plaintiff for those claims of damage. There is no exact standard to be applied; any such award should be fair and just in the light of the evidence.] You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: (a) Net lost wages and benefits to the date of trial; (b) Emotional pain and mental anguish. [(c) Punitive damages, if any (as explained in the Court’s instructions)] [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] [The Plaintiff also claims that the acts of the Defendant were done with malice or reckless indifference to the Plaintiff's federally protected rights so as to entitle the Plaintiff to an award of punitive damages in addition to compensatory damages. If you find for the Plaintiff, and if you further find that the Defendant did act with malice or reckless indifference to the Plaintiff’s federally protected rights, the law would allow you, in your discretion, to assess punitive damages against the Defendant as punishment and as a deterrent to others. If you find that punitive damages should be assessed against the Defendant, you may consider the financial resources of the Defendant in fixing the amount of such damages [and you may assess punitive damages against one or more of the Defendants, and not others, or against more than one Defendant in different amounts].] 1.1.1 Public Employee First Amendment Claim Discharge/Failure To Promote Free Speech On Matter Of Public Concern SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: [1. That the actions of the Defendants were “under color” of the authority of the State? Answer Yes or No ] 1. That the Plaintiff engaged in speech activity concerning [describe the subject of public concern]? Answer Yes or No 2. That such speech activity was a substantial or motivating factor in the Defendants’ decision to [discharge the Plaintiff from employment] [not promote the Plaintiff]? Answer Yes or No 3. That the Defendants’ acts were the proximate or legal cause of damages sustained by the Plaintiff? Answer Yes or No [Note: If you answered No to any of the preceding questions you need not answer any of the remaining questions.] 4. That the Plaintiff [would have been discharged from employment] [would not have been promoted] for other reasons even in the absence of the Plaintiff’s protected speech activity? Answer Yes or No [Note: If you answered Yes to Question No. 4 you need not answer the remaining questions.] 5. That the Plaintiff should be awarded damages to compensate for a net loss of wages and benefits to the date of trial? Answer Yes or No If your answer is Yes, in what amount? $       6. That the Plaintiff should be awarded damages to compensate for emotional pain and mental anguish? Answer Yes or No If your answer is Yes, in what amount? $       7. That the Defendant acted with malice or reckless indifference to the Plaintiff’s federally protected rights and that punitive damages should be assessed against the Defendant? Answer Yes or No If your answer is Yes, in what amount? $       SO SAY WE ALL. Foreperson DATED:       ANNOTATIONS AND COMMENTS In Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir. 1989), reh’g denied, 894 F.2d 414 (11th Cir. 1990), the Eleventh Circuit set out a four part inquiry applicable to adverse employment action claims by public employees based on the First Amendment: (1) Whether the speech activity involved a matter of public concern; (2) if so, whether the employee’s First Amendment interests counterbalance the interest of the state in promoting the efficiency of the services it provides through its employees; (3) if the employee prevails on both of those issues, whether the protected speech activity was a motivating factor in the adverse employment action; and (4) if so, whether the Defendant has shown that it would have made the same decision even in the absence of the protected speech activity. The first two of these questions are legal issues for the court to decide, usually on summary judgment; the latter two issues are for the fact finder at trial. See Morgan v. Ford, 6 F.3d 750, 754 (11th Cir. 1993), cert. denied 512 U.S. 1221, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994). The Bryson test remains the law of the Circuit. See, Vista Comm. Services v. Dean, 107 F.3d 840, 844 (11th Cir. 1997); Tindal v. Montgomery County Comm’n., 32 F.3d 1535, 1540(11th Cir. 1994), reh’g denied, 42 F.3d 646 (11th Cir. 1994). With regard to that portion of the instruction defining actions taken “under color” of the authority of the state, see West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). See also, Edwards v. Wallace Community College, 49 F.3d 1517 (11 th Cir. 1995) and Almand v. DeKalb County, 103 F.3d 1510 (11th Cir.), cert. denied, U.S. , 118 S.Ct. 411, 139 L.Ed.2d 315 (1997) (not all acts by state employees are taken under color of state law; the issue is whether the official was acting pursuant to power possessed by virtue of state authority or was acting only as a private individual). The “substantial” or “motivating” factor causation requirement was first set forth in Mt. Healthy City Dist. Bd. Of Ed. v. Doyle, 429 U.S. 274,97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and is part of the four part Bryson test. In Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 35 L.Ed.2d 843 (1996), the Court held that the First Amendment also protects independent contractors from termination of at-will government contracts in retaliation for the exercise of protected free speech. This instruction would also apply in those cases. The text of § 1983 does not provide for specific remedies. Therefore, it is necessary to look to the law as it has developed in the Eleventh Circuit and in other Federal Circuits. Historically, Plaintiffs have been able to recover compensatory damages (including pain and suffering), punitive damages, back pay, and front pay or reinstatement. Section 1983 has been interpreted, even prior to the Civil Rights Act of 1991, to permit the recovery of compensatory and punitive damages. The Supreme Court has held that punitive damages may be recovered when the defendant commits acts with reckless or callous disregard for the plaintiff’s rights. Smith v. Wade, 461 U.S. 30, 51, 103 S.Ct. 1625, 1637, 75 L.Ed.2d 632 (1983). The one major limitation on the recovery of punitive damages in § 1983 claims is that they are not recoverable against a government entity. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Garrett v. Clarke County Board of Education, 857 F.Supp. 949, 953 (S.D. Ala. 1994); Thornton v. Kaplan, 937 F.Supp. 1441, 1450 (D.Col. 1996). Because many § 1983 claims are brought against government officials in their official capacities or against municipal entities themselves (often school boards), punitive damages are not recoverable in a large number of § 1983 claims. The Civil Rights Act of 1991 has clarified that government entities may not be sued for punitive damages. However, punitive damages are recoverable against all other defendants in § 1983 suits (i.e. individual capacity suits), and the statutorily mandated caps set out in § 102 of the 1991 Civil Rights Act, which apply in Title VII claims, do not apply to § 1983 claims. See Thornton, 937 F.Supp. at 1450 (noting that in Title VII claims, the 1991 Act also limits recovery of combined compensatory and punitive damages, depending upon the size of the employer). Additionally, the Court, in its discretion, may award front pay as an alternative to reinstatement. See Feldman v. Philadelphia Housing Authority, 43 F.3d 823 (3d Cir. 1994). Reinstatement is available as an equitable remedy, and it is the preferred remedy for employment discharges that violate 42 USC § 1983. Id. at 831-32. Because reinstatement or an award of front pay is a choice of equitable remedies to be made by the Court, not the jury, the enumerated elements of recoverable damages do not include front pay as an issue for the jury. However, reinstatement is not the exclusive remedy, and it is not always a feasible option. Id. (upholding a $500,000.00 jury award of front pay as not excessive when supported by sufficient evidence.) See Annotations and Comments following Federal Claims Instruction No. 1.2.1, infra. Damages for pain and suffering may also be awarded as part of compensatory damages. The Eleventh Circuit has noted that damages under § 1983 are determined by compensation principles brought over from the common law. Wright v. sheppard, 919 F.2d 665, 669 (11th Cir. 1990). The courts may award damages for injuries such as humiliation, emotional distress, mental anguish and suffering as “within the ambit of compensatory damages.” Id.