CACI No. 3963

[Name of defendant] claims that if [name of plaintiff] is entitled to any

damages, they should be reduced by the amount that [name of plaintiff]

could have earned from other employment. To succeed, [name of

defendant] must prove all of the following:

1. That employment substantially similar to [name of plaintiff]’s

former job was available to [him/her/ nonbinary pronoun];

2. That [name of plaintiff] failed to make reasonable efforts to seek

[and retain] this employment; and

3. The amount that [name of plaintiff] could have earned from this

employment.

In deciding whether the employment was substantially similar, you

should consider, among other factors, whether:

(a) The nature of the work was different from [name of plaintiff]’s

employment with [name of defendant];

(b) The new position was substantially inferior to [name of

plaintiff]’s former position;

(c) The salary, benefits, and hours of the job were similar to

[name of plaintiff]’s former job;

(d) The new position required similar skills, background, and

experience;

(e) The job responsibilities were similar; [and]

(f) The job was in the same locality; [and]

(g) [insert other relevant factor(s)].

[In deciding whether [name of plaintiff] failed to make reasonable efforts

to retain comparable employment, you should consider whether [name of

plaintiff] quit or was discharged from that employment for a reason

within [his/her/ nonbinary pronoun] control.]

New September 2003; Revised February 2007, December 2014; Revised and

Renumbered from CACI No. 2407 November 2018