California Civil Jury Instructions (CACI) (2017)

2512. Limitation on Remedies—Same Decision

Download PDF
2512.Limitation on Remedies—Same Decision
[Name of plaintiff] claims that [he/she] was [discharged/[other adverse
employment action]] because of [his/her] [protected status or action, e.g.,
race, gender, or age], which is an unlawful [discriminatory/retaliatory]
reason. [Name of defendant] claims that [name of plaintiff] [was
discharged/[other adverse employment action]] because of [specify reason,
e.g., plaintiff’s poor job performance], which is a lawful reason.
If you find that [discrimination/retaliation] was a substantial motivating
reason for [name of plaintiff]’s [discharge/[other adverse employment
action]], you must then consider [name of defendant]’s stated reason for
the [discharge/[other adverse employment action]].
If you find that [e.g., plaintiff’s poor job performance] was also a
substantial motivating reason, then you must determine whether the
defendant has proven that [he/she/it] would have [discharged/[other
adverse employment action]] [name of plaintiff] anyway at that time based
on [e.g., plaintiff’s poor job performance] even if [he/she/it] had not also
been substantially motivated by [discrimination/retaliation].
In determining whether [e.g., plaintiff’s poor job performance] was a
substantial motivating reason, determine what actually motivated [name
of defendant], not what [he/she/it] might have been justified in doing.
If you find that [name of defendant] [discharged/[other adverse
employment action]] [name of plaintiff] for a [discriminatory/retaliatory]
reason, you will be asked to determine the amount of damages that [he/
she] is entitled to recover. If, however, you find that [name of defendant]
would have [discharged/[other adverse employment action]] [name of
plaintiff] anyway at that time for [specify defendant’s nondiscriminatory/
nonretaliatory reason], then [name of plaintiff] will not be entitled to
reinstatement, back pay, or damages.
New December 2013; Revised June 2015, June 2016
Directions for Use
Give this instruction along with CACI No. 2507, “Substantial Motivating Reason”
Explained, if the employee has presented sufficient evidence for the jury to find
that the employer took adverse action against him or her for a prohibited reason,
but the employer has presented sufficient evidence for the jury to find that it had a
legitimate reason for the action. In such a “mixed-motive” case, the employer is
relieved from an award of damages, but may still be liable for attorney fees and
costs and injunctive relief. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 211 [152 Cal.Rptr.3d 392, 294 P.3d 49].)
Mixed-motive must be distinguished from pretext though both require evaluation of
1442
0044
the same evidence, i.e., the employer’s purported legitimate reason for the adverse
action. In a pretext case, the only actual motive is the discriminatory one and the
purported legitimate reasons are fabricated in order to disguise the true motive.
(See City and County of San Francisco v. Fair Employment and Housing Com.
(1987) 191 Cal.App.3d 976, 985 [236 Cal.Rptr. 716].) The employee has the
burden of proving pretext. (Harris, supra, 56 Cal.4th at pp. 214–215.) If the
employee proves discrimination or retaliation and also pretext, the employer is
liable for all potential remedies including damages. But if the employee proves
discrimination or retaliation but fails to prove pretext, then a mixed-motive case is
presented. To avoid an award of damages, the employer then has the burden of
proving that it would have made the same decision anyway solely for the legitimate
reason, even though it may have also discriminated or retaliated.
Sources and Authority
• “[U]nder the FEHA, when a jury finds that unlawful discrimination was a
substantial factor motivating a termination of employment, and when the
employer proves it would have made the same decision absent such
discrimination, a court may not award damages, backpay, or an order of
reinstatement. But the employer does not escape liability. In light of the FEHA’s
express purpose of not only redressing but also preventing and deterring
unlawful discrimination in the workplace, the plaintiff in this circumstance
could still be awarded, where appropriate, declaratory relief or injunctive relief
to stop discriminatory practices. In addition, the plaintiff may be eligible for
reasonable attorney’s fees and costs.” (Harris, supra, 56 Cal.4th at p. 211.)
• “Because employment discrimination litigation does not resemble the kind of
cases in which we have applied the clear and convincing standard, we hold that
preponderance of the evidence is the standard of proof applicable to an
employer’s same-decision showing” (Harris, supra, 53 Cal.4th at p. 239.)
• “[W]hen we refer to a same-decision showing, we mean proof that the
employer, in the absence of any discrimination, would have made the same
decision at the time it made its actual decision.” (Harris, supra, 56 Cal.4th at p.
224, original italics.)
• “In light of today’s decision, a jury in a mixed-motive case alleging unlawful
termination should be instructed that it must find the employer’s action was
substantially motivated by discrimination before the burden shifts to the
employer to make a same-decision showing, and that a same-decision showing
precludes an award of reinstatement, backpay, or damages.” (Harris, supra, 56
Cal.4th at p. 241.)
• “We do not suggest that discrimination must be alone sufficient to bring about
an employment decision in order to constitute a substantial motivating factor.
But it is important to recognize that discrimination can be serious,
consequential, and even by itself determinative of an employment decision
without also being a ‘but for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “[A] plaintiff has the initial burden to make a prima facie case of discrimination
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2512
1443
0045
by showing that it is more likely than not that the employer has taken an
adverse employment action based on a prohibited criterion. A prima facie case
establishes a presumption of discrimination. The employer may rebut the
presumption by producing evidence that its action was taken for a legitimate,
nondiscriminatory reason. If the employer discharges this burden, the
presumption of discrimination disappears. The plaintiff must then show that the
employer’s proffered nondiscriminatory reason was actually a pretext for
discrimination, and the plaintiff may offer any other evidence of discriminatory
motive. The ultimate burden of persuasion on the issue of discrimination
remains with the plaintiff.” (Harris, supra, 56 Cal.4th at pp. 214–215.)
• “Following the California Supreme Court’s decision in Harris, . . . the Judicial
Council added CACI No. 2512, to be given when the employer presents
evidence of a legitimate reason for the adverse employment action, informing
the jurors that even if they find that discrimination was a substantial motivating
reason for the adverse action, if the employer establishes that the adverse action
nonetheless would have been taken for legitimate reasons, ‘then [the plaintiff]
will not be entitled to reinstatement, back pay, or damages.’ ” (Davis v. Farmers
Ins. Exchange (2016) 245 Cal.App.4th 1302, 1320−1321 [200 Cal.Rptr.3d
315].)
• “ ‘[Plaintiff] further argues that for equitable reasons, an employer that wishes
to make a same-decision showing must concede that it had mixed motives for
taking the adverse employment action instead of denying a discriminatory
motive altogether. But there is no inconsistency when an employer argues that
its motive for discharging an employee was legitimate, while also arguing,
contingently, that if the trier of fact finds a mixture of lawful and unlawful
motives, then its lawful motive alone would have led to the discharge.’ ”
(Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th
169, 199 [167 Cal.Rptr.3d 24] [quoting Harris, supra, 56 Cal.App.4th at p.
240].)
• “As a preliminary matter, we reject [defendant]’s claim that the jury could have
found no liability on the part of [defendant] had it been properly instructed on
the mixed-motive defense at trial. As discussed, the Supreme Court in Harris
held that the mixed-motive defense is available under the FEHA, but only as a
limitation on remedies and not as a complete defense to liability. Consequently,
when the plaintiff proves by a preponderance of the evidence that discrimination
was a substantial motivating factor in the adverse employment decision, the
employer is liable under the FEHA. When the employer proves by a
preponderance of the evidence that it would have made the same decision even
in the absence of such discrimination, the employer is still liable under the
FEHA, but the plaintiff’s remedies are then limited to declaratory or injunctive
relief, and where appropriate, attorney’s fees and costs. As presently drafted,
BAJI No. 12.26 does not accurately set forth the parameters of the defense as
articulated by the Supreme Court, but rather states that, in a mixed-motive case,
‘the employer is not liable if it can establish by a preponderance of the
CACI No. 2512 FAIR EMPLOYMENT AND HOUSING ACT
1444
0046
evidence that its legitimate reason, standing alone, would have induced it to
make the same decision.’ By providing that the mixed-motive defense, if
proven, is a complete defense to liability, [defendant]’s requested instruction
directly conflicts with the holding in Harris. (Alamo v. Practice Management
Information Corp. (2013) 219 Cal.App.4th 466, 481 [161 Cal.Rptr.3d 758],
internal citations omitted.)
• “Pretext may . . . be inferred from the timing of the company’s termination
decision, by the identity of the person making the decision, and by the
terminated employee’s job performance before termination.” (Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 272 [100 Cal.Rptr.3d 296].)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 928,
950
7Witkin, California Procedure (5th ed. 2008), Judgment § 217
3 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.11 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.23 (Matthew Bender)
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2512
1445
0047