California Civil Jury Instructions (CACI) (2017)

3050. Retaliation—Essential Factual Elements (42 U.S.C. § 1983)

Download PDF
3050.Retaliation—Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] retaliated against
[him/her] for exercising a constitutional right. [By [specify conduct],
[name of plaintiff] was exercising [his/her] constitutionally protected
right of [insert right, e.g., privacy].] To establish retaliation, [name of
plaintiff] must prove all of the following:
1. [That [he/she] was engaged in a constitutionally protected
2. That [name of defendant] [specify alleged retaliatory conduct];
3. That [name of defendant]’s acts were motivated, at least in part,
by [name of plaintiff]’s protected activity;
4. That [name of defendant]’s acts would likely have deterred a
person of ordinary firmness from engaging in that protected
activity; and
5. That [name of plaintiff] was harmed as a result of [name of
defendant]’s conduct.
[The law requires that the trial judge, rather than the jury, decide if
[name of plaintiff] has proven element 1 above. But before I can do so,
you must decide whether [name of plaintiff] has proven the following:
[List all factual disputes that must be resolved by the jury.]]
New June 2010; Revised December 2010, Renumbered from CACI No. 3016 and
Revised December 2012, June 2013
Directions for Use
Give this instruction along with CACI No. 3000, Violation of Federal Civil
Rights—In General—Essential Factual Elements, if the claimed civil rights
violation is retaliation for exercising constitutionally protected rights. The
retaliation should be alleged generally in element 1 of CACI No. 3000.
The constitutionally protected activity refers back to the right alleged to have been
violated in element 3 of CACI No. 3000. Whether plaintiff was engaged in a
constitutionally protected activity will usually have been resolved by the court as a
matter of law. If so, include the optional statement in the opening paragraph and
omit element 1. If there is a question of fact that the jury must resolve with regard
to the constitutionally protected activity, include element 1 and give the last part of
the instruction.
There is perhaps some uncertainty with regard to the requirement in element 3 that
the retaliatory act may be motivated, in part, by the protected activity. While the
element is so stated in Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th
1049, 1062–1063 [99 Cal.Rptr.3d 661], the court also was of the view that the
defendant may avoid liability by proving that, notwithstanding a retaliatory motive,
it also had legitimate reasons for its actions and would have taken the same steps
for those reasons alone. (Id. at pp. 1086–1087, finding persuasive Greenwich
Citizens Comm. v. Counties of Warren & Washington Indus. Dev. Agency (2d Cir.
1996) 77 F.3d 26, 30.) Therefore, the fact that retaliation may have motivated the
defendant only in part may not always be sufficient for liability. In the Ninth
Circuit, there is authority for both a “but-for” and a “substantial or motivating
factor” standard. (Compare Karl v. City of Mountlake Terrace (9th Cir. 2012) 678
F.3d 1062, 1072 [defendant may show that: (1) the adverse employment action was
based on protected and unprotected activities; and (2) defendant would have taken
the adverse action if the proper reason alone had existed] with Blair v. Bethel Sch.
Dist. (9th Cir. 2010) 608 F.3d 540, 543 [third element expressed as “there was a
substantial causal relationship between the constitutionally protected activity and
the adverse action”].)
Sources and Authority
• “Where, as here, the plaintiff claims retaliation for exercising a constitutional
right, the majority of federal courts require the plaintiff to prove that (1) he or
she was engaged in constitutionally protected activity, (2) the defendant’s
retaliatory action caused the plaintiff to suffer an injury that would likely deter
a person of ordinary firmness from engaging in that protected activity, and (3)
the retaliatory action was motivated, at least in part, by the plaintiff’s protected
activity.” (Tichinin, supra, 177 Cal.App.4th at pp. 1062–1063.)
• “[A]ctions that are otherwise proper and lawful may nevertheless be actionable
if they are taken in retaliation against a person for exercising his or her
constitutional rights.” (Tichinin, supra, 177 Cal.App.4th at p. 1084.)
• “[A]n individual has a right ‘to be free from police action motivated by
retaliatory animus but for which there was probable cause.’ ” (Ford v. City of
Yakima (9th Cir. 2013) 706 F.3d 1188, 1193.)
• “Probable cause is not irrelevant to an individual’s claim that he was booked
and jailed in retaliation for his speech. Probable cause for the initial arrest can
be evidence of a police officer’s lack of retaliatory animus for subsequently
booking and jailing an individual. However, that determination should be left to
the trier of fact once a plaintiff has produced evidence that the officer’s conduct
was motivated by retaliatory animus.” (Ford,supra, 706 F.3d at p. 1194 fn.2,
internal citation omitted.)
• “[T]he evidence of [plaintiff]’s alleged injuries, if believed, is sufficient to
support a finding that the retaliatory action against him would deter a person of
ordinary firmness from exercising his or her First Amendment rights. [¶]
[Defendant] argues that plaintiff did not suffer any injury—i.e., [defendant]’s
action did not chill [plaintiff]’s exercise of his rights—because he continued to
litigate against [defendant]. However, that [plaintiff] persevered despite
[defendant]’s action is not determinative. To reiterate, in the context of a claim
of retaliation, the question is not whether the plaintiff was actually deterred but
whether the defendant’s actions would have deterred a person of ordinary
firmness.” (Tichinin, supra, 177 Cal.App.4th at p. 1082.)
• “Intent to inhibit speech, which ‘is an element of the [retaliation] claim,’ can be
demonstrated either through direct or circumstantial evidence.” (Mendocino
Envtl. Ctr. v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1300–1301,
internal citation omitted.)
• “To show that retaliation was a substantial or motivating factor behind an
adverse employment action, a plaintiff can (1) introduce evidence that the
speech and adverse action were proximate in time, such that a jury could infer
that the action took place in retaliation for the speech; (2) introduce evidence
that the employer expressed opposition to the speech; or (3) introduce evidence
that the proffered explanations for the adverse action were false and pretextual.”
(Anthoine v. N. Cent. Counties Consortium (9th Cir. 2010) 605 F.3d 740, 750.)
• “To satisfy the [causation] requirement, the evidence must be sufficient to
establish that the officers’ desire to chill [plaintiff]’s speech was a but-for cause
of their conduct. In other words, would [plaintiff] have been booked and jailed,
rather than cited and arrested, but for the officers’ desire to punish [him] for his
speech?” (Ford,supra, 706 F.3d at p. 1194.)
• “[Defendant] may avoid liability if he shows that a ‘final decision maker’s
independent investigation and termination decision, responding to a biased
subordinate’s initial report of misconduct, . . . negate[s] any causal link’
between his retaliatory motive and the adverse employment action. This is
because a final decision maker’s wholly independent investigation and decision
establish that ‘the employee’s protected speech was not a but-for cause of the
adverse employment action.’ ” (Karl,supra, 678 F.3d at pp. 1072–1073, internal
citation omitted.)
• “While the scope, severity and consequences of [their] actions are belittled by
defendants, we have cautioned that ‘a government act of retaliation need not be
severe . . . [nor] be of a certain kind’ to qualify as an adverse action.” (Marez
v. Bassett (9th Cir. 2010) 595 F.3d 1068, 1075.)
• “We employ a ‘sequential five-step series of questions’ to determine whether an
employer impermissibly retaliated against an employee for protected speech: (1)
whether the plaintiff spoke on a matter of public concern; (2) whether the
plaintiff spoke as a private citizen or public employee; (3) whether the
plaintiff’s protected speech was a substantial or motivating factor in the adverse
employment action; (4) whether the state had an adequate justification for
treating the employee differently from other members of the general public; and
(5) whether the state would have taken the adverse employment action even
absent the protected speech.” (Anthoine, supra, 605 F.3d at p. 748.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 820,
2 Wilcox, California Employment Law, Ch. 40, Overview of Equal Opportunity
Laws, § 40.26 (Matthew Bender)
3 Civil Rights Actions, Ch. 17, Discrimination in Federally Assisted Programs,
¶ 17.24B (Matthew Bender)
4 Civil Rights Actions, Ch. 21A, Employment Discrimination Based on Race,
Color, Religion, Sex, or National Origin, ¶ 21.22(f) (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.42 (Matthew Bender)