The Third Circuit has posted June 2024 revisions to its
Model Civil Jury Instructions. The changes include the
following:
The Comment to Instruction 1.2 (Preliminary Instructions — Description of Case; Summary of Applicable Law) now addresses how the court should deal with persons wishing to be refered to by a nonbinary pronoun.
The end of the Comment to Instruction 4.4.2 (Section 1983 – Action under Color of State Law – Determining When an Official Acted under Color of State Law) now adds as a factor in non-police officer defendant cases: "In the context of social media, whether the government official “(1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.”
The Comment to Instruction 4.6.3 (Section 1983 – Liability in Connection with the Actions of Another – Municipalities – General Instruction) now cites Mervilus v. Union County, 73 F.4th 185, 197 (3d Cir. 2023).
The Comment to Instruction 4.7.2 (Section 1983 – Affirmative Defenses –
Qualified Immunity) now cites Anglemeyer v. Ammons, 92 F.4th 184, 192
(3d Cir. 2024), Thomas v. City of Harrisburg, 88 F.4th 275, 285
(3d Cir. 2023), Rivera v. Redfern, 98 F.4th 419, 423-24 (3d Cir. 2024), Rush v. City of Philadelphia, 78 F.4th 610 (3d Cir. 2023).
The Comment to Instruction 4.9 (Section 1983 – Excessive Force (Including Some Types of Deadly Force) – Stop, Arrest, or other “Seizure”) now cites Anglemeyer and Rush v. City of Philadelphia, 78 F.4th 610 (3d Cir. 2023).
The Comment to Instruction 4.11.1 (Section 1983 – Conditions of Confinement –
Convicted Prisoner – Denial of Adequate Medical Care) now cites Thomas v. City of Harrisburg.
The Comment to Instruction 4.12 (Section 1983 – Unlawful Seizure)now cites United States v. Goerig, 2024 WL 3659600 (3d Cir., amended Aug. 6, 2024), and United States v. Amos, 88 F.4th 446, 453 (3d Cir. 2023).
The Comment to Instruction 4.12.1 (Section 1983 – Unlawful Seizure – Terry Stop and Frisk) now cites Goerig, United States v. Stewart, 92 F.4th 461, 467 (3d Cir. 2024), and United States v. Hunter, 88 F.4th 221, 226 (3d Cir. 2023).
The Comment to Instruction 4.12.3 (Section 1983 – Unlawful Seizure – Arrest – Warrant Application) now cites Pinkney v. Meadville, Pennsylvania, 95 F.4th 743 (3d Cir. 2024), United States v. Savage, 85 F.4th 102 (3d Cir. 2023), and United States v. Stanford, 75 F.4th 309 (3d Cir. 2023).
The Comment to Instruction 4.13 (Section 1983 – Malicious Prosecution) now cites Mervilus.
The Discrimination because of religion section of the Comment to Instruction 5.0 (Title VII Introductory Instruction) now discusses Groff v. DeJoy, 123 S. Ct. 2279 (2023).
The elements list in Instructions 5.1.1 (Elements of a Title VII Claim — Disparate Treatment — Mixed-Motive) and 5.1.2 (Elements of a Title VII Claim – Disparate Treatment — Pretext) have been revised as follows:
First: [Defendant] [failed to hire [plaintiff]] [failed to renew [plaintiff’s] employment arrangement] [failed to promote [plaintiff]] [demoted [plaintiff]] [terminated [plaintiff]] [constructively discharged [plaintiff]] [or otherwise discriminated against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment] ; and
Second: such action\ resulted in harm or injury to plaintiff; and
Third: [Plaintiff’s] [protected status] was a motivating factor in [defendant's] decision.
The Comment to Instruction 5.1.1 now cires Qing Qin v. Vertex, Inc., 100 F.4th 458 (3d Cir. 2024).The Adverse Employment Action section of the Instruction now expensively discusses Muldrow v. City of St. Louis, 144 S. Ct. 967, 974 (2024). The Discrimination because of religion section now discusses Groff v. DeJoy, 123 S. Ct. 2279 (2023).
The Adverse Employment Action section of Instruction 5.1.2 was revised in light of Muldrow.
The Comments to Instructions 5.1.4 (Elements of a Title VII Action — Harassment — Hostile Work Environment — Tangible Employment Action), 5.1.5 (Elements of a Title VII Claim — Harassment — Hostile Work Environment — No Tangible Employment Action), and 5.1.7 (Elements of a Title VII Claim — Retaliation) now cite Qing Qin.
The first element of Instruction 6.1.2 (Elements of a Section 1981 Claim— Disparate Treatment— Pretext) has been revised:
"First: [Defendant] [failed to hire [plaintiff]] [failed to renewimpaired [plaintiff’s] employment arrangement] [failed to promote [plaintiff]] [demoted [plaintiff]] [terminated [plaintiff]] [constructively discharged [plaintiff]] [or otherwise discriminated against [plaintiff] in a seriousright to make and tangible way with respect to [plaintiff’s] compensationenforce contracts, which includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms,
and conditions, or privileges of employmentof the contractual relationship by
[describe action]; and"
The Adverse Employment Action section now discusses Mudrow.
The Comment to Instruction 7.4 (Employment Discrimination – Retaliation – First Amendment) now cites Lindke v. Freed, 601 U.S. 187, 191 (2024), and Fenico v. City of Philadelphia, 70 F.4th 151 (3d Cir. 2023).
The elements list of Instruction 8.1.1 (Elements of an ADEA Claim— Disparate Treatment) has been revised:
First: [Defendant] [failed to hire [plaintiff]] [failed to renew [plaintiff’s] employment arrangement] [failed to promote [plaintiff]] [demoted [plaintiff]] [terminated [plaintiff]] [constructively discharged [plaintiff]] [or otherwise discriminated against [plaintiff] in a serious and tangible way with respect to [plaintiff’s] compensation, terms, conditions, or privileges of employment] ; and
Second: such action resulted in harm to plaintiff;
and
Third: [Plaintiff’s] age was a determinative factor in [defendant's] decision.
The Adverse Employment Action section now discusses Muldrow.
Instructions 9.1.1 (Elements of an ADA Claim— Disparate Treatment — Mixed-Motive) and 9.1.2 (Elements of an ADA Claim – Disparate Treatment — Pretext) have a new fourth element: "[Defendant’s] decision affected [job application procedures applicable to [plaintiff], [the hiring, advancement, or discharge of] [plaintiff], [plaintiff”s] [compensation], [job training], [other terms, conditions, and privileges of] [his/her] employment] and [plaintiff] suffered some harm or injury as a result of that decision."
The Adverse Employment Action sections of each of these instructions, and
10.1.1 (Elements of an FMLA Claim— Interference With Right to Take Leave), 10.1.2 (Elements of an FMLA Claim — Discrimination — Mixed-Motive), and 10.1.3 (Elements of an FMLA Claim— Discrimination —Pretext) now discuss Muldrow.