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Third Circuit revised civil instructions

The Third Circuit has posted a number of revisions to its model civil jury instructions. Although they just went up, the changes are labeled as August 2020.

  • A new paragraph has been added at the end of Instruction 3.1 (General Instructions For Use At End of Trial-Deliberations) regarding United States v. James, 955 F.3d 336 (3d Cir. 2020), which approved the the removal of a juror after the jury had been polled.
  • The Comment to Instruction 4.4 (Section 1983-Action under Color of State Law) now cites Davis v. Samuels, 962 F.3d 105, 111-12 & n.4 (3d Cir. 2020) (stating “[w]e are deeply skeptical” of the district court’s conclusion that operators of a private prison are not government actors and noting that the “Supreme Court has not held that private prison operators cannot be liable for damages under Bivens because they are not ‘federal actors’”).
  • Notes in Instruction 4.6.3 (Section 1983-Liability in Connection with the Actions of Another-Municipalities-General Instruction) suggest omitting language where the jury is being instructed on a theory of inadequate training or supervision, citing Forrest v. Parry, 930 F.3d 93 (2019). This is explained at the end of the Comment. "In light of Forrest, a district court might consider avoiding such confusion by keeping any instruction on a policy or custom claim distinct from any instruction on an inadequate training or supervision claim."
  • A note in Instruction 4.6.7 (Section 1983-Liability in Connection with the Actions of Another-Municipalities-Liability Through Inadequate Training or Supervision) suggests that in light of Forrest, courts consider instructing the jury that “[plaintiff] claims that [municipality] failed to [adequately train] [adequately supervise] its employees, and that this failure caused the violation of [plaintiff’s] [specify right].” Readers are directed to the discussion of Forrest in the Comment to Instruction 4.6.3.
  • A similar note appears in Instruction 4.6.8 (Section 1983-Liability in Connection with the Actions of Another-Municipalities-Liability Through Inadequate Screening).
  • The Comment to Instruction 4.7.1 (Section 1983-Affirmative Defenses-Conduct Not Covered by Absolute Immunity) now cites Fogle v. Sokol, 957 F.3d 148 (3d Cir. 2020) (holding that arranging a hypnosis session to procure a statement and encouraging troopers to solicit false statements from jailhouse informants were not protected by absolute immunity, while failing to report inconsistencies to a magistrate judge and various misconduct at hearings and at trial were protected).
  • Instruction 4.7.2 (Section 1983-Affirmative Defenses-Qualified Immunity) now cites Thomas v. Tice, 948 F.3d 133, 141 (3d Cir. 2020) (denying qualified immunity because defendants “failed to present evidence of any continuing penological interest” in keeping a prisoner in a dry cell (a cell that lacks any water) to discover suspected swallowed contraband after four days and twelve bowel movements had produced no evidence of contraband); James v. New Jersey State Police, 957 F.3d 165 (3d Cir. 2020) (holding that officer was protected by qualified immunity because case was most similar to Kisela, officer knew that the man he shot (1) had violated a restraining order; (2) possessed a firearm that he had brandished within the last hour; and (3) was reportedly mentally ill and may have been off his medication, and distinguishing Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002), in part because of this knowledge); and Williams v. City of York, 967 F.3d 252 (3d Cir. 2020) (holding that defendants alleged to have made arrest without probable were protected by qualified immunity because of uncertainty in state law).
  • The Comment to Instruction 4.9 (Section 1983-Excessive Force (Including Some Types of Deadly Force)-Stop, Arrest, or other “Seizure”) now cites Williams v. City of York, 967 F.3d 252 (3d Cir. 2020) (holding that it was reasonable for officers responding to a shots-fired call to (1) throw the plaintiff to the ground because she ran and pounded on the door of a house rather than comply with an order to get on the ground and (2) fail to loosen her handcuffs because the defendants were not notified she was in pain).
  • The Comment to Instruction 4.11.1 (Section 1983-Conditions of Confinement-Convicted Prisoner-Denial of Adequate Medical Care) now cites Dooley v. Wetzel, 957 F.3d 366, 375 (3d Cir. 2020) (stating that claimed “depression, pain, trauma, lack of sleep, nightmares, paranoia, and related mental health issues could constitute the requisite serious medical need if diagnosed or if the need for greater treatment would be obvious to a lay person” and that guilty but mentally ill jury verdict and comments by sentencing judge may show that mental health problems at one point were obvious to lay people).
  • The Comment to Instruction 4.12.1 (Section 1983 – Unlawful Seizure – Terry Stop and Frisk) has a discussion of In Kansas v. Glover, 140 S. Ct. 1183 (2020) (reasonable to infer that the driver of a car is likely its owner). The rest of the Comment has been substantially rewritten.
  • Instruction 5.0 (Title VII Introductory Instruction) adds sexual orientation or transgender status to the types of discrimination, based on Bostock v. Clayton County, 140 S.Ct. 1731 (2020). It also discusses the affirmative defense barring the government from interfering with the decision of a religious group to fire one of its ministers, citing Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049 (2020), and but-for causation in Babb v. Wilkie, 140 S.Ct. 1168 (2020).
  • The Comment to Instruction 5.1.1 (Elements of a Title VII Claim-Disparate Treatment-Mixed-Motive) now ends by noting cases that have applied Staub v. Proctor Hosp., 131 S.Ct. 1186, 1194 (2011).
  • Instruction 5.1.4 (Elements of a Title VII Action — Harassment — Hostile Work Environment — Tangible Employment Action) now deletes the seventh element:
    [For use when the alleged harassment is by non-supervisory employees:
    Seventh: Management level employees knew, or should have known, of the abusive conduct. Management level employees should have known of the abusive conduct if 1) an employee provided management level personnel with enough information to raise a probability of [protected class] harassment in the mind of a reasonable employer, or if 2) the harassment was so pervasive and open that a reasonable employer would have had to be aware of it.]
  • The Comment to Instruction 5.1.7 (Elements of a Title VII Claim — Retaliation) now notes Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (after holding plaintiff’s conduct unprotected by the opposition clause because the plaintiff could not have reasonably believed the challenged employer actions to be illegal, the Supreme Court went on to consider plaintiff’s participation claim based on the same employer action). It also observes that Komis v. Sec'y of United States Dep't of Labor, 918 F.3d 289, 294 (3d Cir. 2019), "did not focus on the causation standard for a retaliation claim although the Court has held that motivating factor causation governed to federal employee discrimination claims under that statute."
  • The Comment to Instruction 6.0 (Section 1981 Introductory Instruction) notes that Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694 (2012), covers discriminatory refusals to hire, and concludes with a discussion of Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049 (2020).
  • Instruction 6.1.1 (Elements of a Section 1981 Claim-Disparate Treatment-Mixed-Motive) has been deleted.
  • Instruction 6.1.2 (Elements of a Section 1981 Claim-Disparate Treatment-Pretext) no longer references Instruction 6.1.1. A new section on causation discussing Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S.Ct. 1009 (2020), is added to the Comment.
  • Instruction 6.1.3 (Elements of a Section 1981 Claim-Harassment-Hostile Work Environment-Tangible Employment Action) deletes the paragraph regarding harassment is by non-supervisory employees.
  • Most of the section of the Comment to Instruction 6.1.6 (Elements of a Section 1981 Claim — Retaliation) regarding determinative effect has been replaced with a reference to Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S.Ct. 1009 (2020).
  • The Comment to Instruction 7.0 (Section 1983 Employment Discrimination) now ends with a paragraph discussing sexual orientation and transgender status, citing Bostock v. Clayton County, 140 S.Ct. 1731 (2020).
  • The second and third paragraphs of the Comment to Instruction 7.1 (Section 1983 Employment Discrimination–Mixed Motive) has been rewritten in light of Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S.Ct. 1009 (2020), and Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1915 (2020).
  • The Comment to Instruction 7.4 Employment (Discrimination – Retaliation – First Amendment) deletes the reference to Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016), and adds references to Ali v. Woodbridge Twp. Sch. Dist., 957 F.3d 174 (3d Cir. 2020), and Javitz v. Cty. of Luzerne, 940 F.3d 858 (3d Cir. 2019).
  • The optional seventh element (harassment is by non-supervisory employees) of Instruction 8.1.2 (Elements of an ADEA Claim — Harassment — Hostile Work Environment — Tangible Employment Action) has been removed. The change is briefly noted in the Comment.
  • The phrase "and failed to take prompt and adequate remedial action" has been added to the sixth element of Instruction 8.1.3 (Elements of an ADEA Claim — Harassment — Hostile Work Environment — No Tangible Employment Action), and users are instructed to omit the employer's affirmative defense where that instruction is given.
  • A new "Causation for Federal Employees" section has been added to the Comment to Instruction 8.1.5 (Elements of an ADEA Claim — Retaliation) that cites Babb v. Wilkie, 140 S.Ct. 1168 (2020), and Gomez-Perez v. Potter, 128 S.Ct. 1931 (2008).
  • The last sentence of the first paragraph of the Comment to Instruction 8.3.2 (ADEA Defenses — Bona Fide Seniority System) has been revised as follows: "See also Hazen Paper Co. v. Biggins, 507 U.S. 604, 616 (1993) (rejecting a claim of age discrimination where to the extent the challenged employment practice was based on the product of a bona fide plaintiff’s seniority system). See also Dalton v. Mercer County Board of Educ., 887 F.2d 490, 492 (4th Cir. 1989) (choosing an applicant with the most seniority pursuant to a bona fide statutory seniority system is not a violation of ADEA) not his age)."
  • The "Religious Entities; Ministerial Exception" section of the Comment to Instruction 9.0 (ADA Employment Claims-Introductory Instruction) now cites Our Lady of Guadalupe v. Morrissey-Berru, 140 S.Ct. 1149 (2020), and Fort Bend Cty. v. Davis, 139 S.Ct. 1843 (2019).
  • The Comment to Instruction 9.1.1 (Elements of an ADA Claim-Disparate Treatment-Mixed-Motive has been rewritten to reflect Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S.Ct. 1009 (2020), and Babb v. Wilkie, 140 S. Ct. 1168 (2020). A reference to (deleted) Instruction and Comment 6.1.1 has been removed. The "Animus of Employee Who Was Not the Ultimate Decisionmaker" section notes the continuing validity of Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), and concludes: "Thus, it is unclear whether the ruling in Staub would extend to mixed-motive claims under the ADA. No Third Circuit precedential decision focuses on the applicability of this theory to ADA cases."
  • The ninth element (harassment by non-supervisory employees) of Instruction 9.1.4 (Elements of an ADA Claim — Harassment — Hostile Work Environment — Tangible Employment Action) has been deleted.
  • The Comment to Instruction 9.1.7 (Elements of an ADA Claim — Retaliation) now discusses Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S.Ct. 1009 (2020), and Babb v. Wilkie, 140 S.Ct. 1168 (2020).
  • The discussion of transitory and minor impairment in Instruction 9.2.1 (ADA Definitions — Disability) has been rewritten, and now concludes: "In deciding whether an impairment is 'minor,' you should look to factors such as the symptoms and severity of the impairment, the type of treatment required, the risk involved, and whether any kind of surgical intervention is anticipated or necessary—as well as the nature and scope of any post-operative care." The Comment attributes this to Eshleman v. Patrick Indus., 961 F.3d 242 (3d Cir. 2020).
  • A note at the beginning of Chapter 10 (FMLA) states: "These instructions and associated commentary address the Family & Medical Leave Act as amended through 2019. In 2020, as part of the federal response to the Covid-19 pandemic, Congress passed the Families First Coronavirus Response Act, 116 P.L. 127, 2020 Enacted H.R. 6201, 116 Enacted H.R. 6201, 134 Stat. 178, which included the Emergency Family and Medical Leave Expansion Act as well as the Emergency Paid Sick Leave Act. Since the Emergency FMLA, effective from April 1, 2020 until December 31, 2020, departs in significant respects from the 'permanent' FMLA, these instructions do not purport to apply to claims under that statute."
  • The "Ministerial exception" section of the Comment to Instruction 10.0 (FMLA Introductory Instruction) has been rewritten consistent with Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 1149 (2020).
  • The introductory note to Chapter 11 and the Comment to Instruction 11.0 (Equal Pay Act Introductory Instruction) state that is is "not clear" whether Bostock v. Clayton County, 140 S. Ct. 1731 (2020) applies to the EPA.

(09/27/21) (permalink)