Fill and Sign the Revenge Isnt Wise Avoiding Retaliation Claims Form

1.9.3 Miscellaneous Issues Retaliation The Plaintiff alleges that the Defendant retaliated, that is, took revenge against the Plaintiff because the Plaintiff had previously taken steps seeking to enforce the Plaintiff's lawful rights under [describe the Act or Statute involved, e.g., Title VII of the Civil Rights Act.] You are instructed that those laws prohibiting discrimination in the work place also prohibit any retaliatory action being taken against an employee by an employer because the employee has asserted rights or made complaints under those laws. So, even if a complaint of discrimination against an employer is later found to be invalid or without merit, the employee cannot be penalized in retaliation for having made such a complaint if you find that the employee made the complaint as a means of seeking to enforce what the employee believed in good faith to be [his] [her] lawful rights. To establish “good faith,” however, it is insufficient for the Plaintiff to merely allege that [his] [her] belief in this regard was honest and bona fide; the allegations and the record must also establish that the belief, though perhaps mistaken, was objectively reasonable.In order to establish the claim of unlawful retaliation, therefore, the Plaintiff must prove by a preponderance of the evidence:First: That [he] [she] engaged in statutorily protected activity, that is, that [he] [she] in good faith asserted claims or complaints of discrimination prohibited by federal law;Second: That an adverse employment action then occurred;Third: That the adverse employment action was causally related to the Plaintiff’s statutorily protected activities; andFourth: That the Plaintiff suffered damages as a proximate or legal result of such adverse employment action. [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.]For an adverse employment action to be "causally related" to statutorily protected activities it must be shown that, but for the protected activity, the adverse employment action would not have occurred. Or, stated another way, it must be shown that the protected activity by the Plaintiff was a substantial, motivating cause that made a difference in the Defendant’s decision. You should be mindful, however, that the law applicable to this case requires only that an employer not retaliate against an employee because the employee has engaged in statutorily protected activity.So far as you are concerned in this case, an employer may [discharge] [refuse to hire] [fail to promote] or otherwise adversely affect an 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 Defendant even though you personally may not approve of the action taken and would have acted differently under the circumstances.ANNOTATIONS AND COMMENTSHairston v. Gainesville Sun Pub. Co., 9 F.3d 913 (11th Cir. 1993), reh’g. denied, 16 F.3d 1233 (1994) (elements required to prove retaliation); Goldsmith v. City of Atmore, 996 F.2d 1155 (11th Cir. 1993) (same); Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491 (11th Cir.), reh’g. denied, 883 F.2d 79 (1989) (while plaintiff is not required to prove underlying claim of discrimination that led to initial complaint, plaintiff must have had an objectively reasonable good faith belief that discrimi nation existed). See also, Harper v. Blockbuster Entertainment Corp., 139 191 F.3d 1385 (11th Cir.) cert. denied, U.S. , 119 S.Ct. 509, 142 L.Ed.2d 422 (1998). The right to be free of retaliation also applies to those who have pursued rights protected by 42 USC § 1981. Andrews v. Lakeshore Rehabilitation Hosp., 140 F.3dm 1405 (11th Cir. 1998). When this instruction is used it may be necessary to expand the Interrogatories to the Jury.