activity was a motivating factor in the adverse employment action. . . .] Ninth Circuit Jury Instructions Comm., Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit 10.3 (2007) (emphasis added) (formatting omitted) (alterations in original). ¶34 The comments to the Ninth Circuit Model Civil Jury Instruction 10.3 note that for the third element (the “because of” element), the trial court “may provide either a ‘single motive’ or ‘mixed motive’ instruction” to the jury. The comments go on to say that with respect to “mixed motive” cases, an employer may escape liability for certain types of relief (e.g., orders of reinstatement, hiring, promotion, etc.) by proving the absence of “but for” causation as an affirmative defense. See Costa II, 539 U.S. at 91 (<HOLDING>); Costa I, 299 F.3d at 850 (“[A]n employer can
holding that a defendant must demonstrate that it would have taken the adverse action absent the protected speech and not simply that it justifiably could have holding that the employer can avail itself of a limited affirmative defense that restricts the available remedies if it demonstrates that it would have taken the same action absent the impermissible but for causation holding that the assertion that a plaintiff prisoner failed to exhaust all available administrative remedies as required under the plra is an affirmative defense under fedrcivp 8c it is the burden of the defendant asserting this affirmative de fense to plead and prove it holding that jurys verdict for the defendant in a breach of contract action did not establish the absence of breach because the jury was instructed that it could find for the defendant if it concluded that the defendant had not breached the contract or if the defendant proved an affirmative defense holding when it is not clear that the sentencing judge would have imposed the same sentence if a lower sentencing range would have been available remand is required