N.J. Model Civil Jury Charge 2.33

2.33 Mitigation of Economic Damages – Back Pay

(04/2014)

(To be provided in conjunction with or following g eneral instructions

regarding damages in a wrongful discharge or discrimination case)

A. General Mitigation Principles

1. If, in accordance with the principles of law pr eviously given to you, you

find that the defendant is liable to the plaintiff for damages which include back pay,

you are to reduce the amount awarded by all income which the plaintiff either earned

or could have earned from comparable employment if she/he had used reasonable and

diligent efforts to obtain such a position.

1

2. The back pay damages are to be reduced by earni ngs that plaintiff either

earned or could have earned because the law requires that the plaintiff use reasonable

and diligent efforts to mitigate or minimize the am ount of damages she/he has

sustained.

1 Goodman v. London Metals Exchange, Inc., 86 N.J. 19 , 34 (1981) ; Sandler v. Lawn-A-Mat

Chem. and Equip. Corp. , 141 N.J. Super. 437, 455 (App. Div.), certif. den. , 71 N.J. 503 (1976);

Rogozinski v. Airstream by Angell , 152 N.J. Super. 133, 158 (Law Div. 1977), modified , 164 N.J.

Super. 465 (App. Div. 1979).

3. In this case, the defendant asserts that the pl aintiff failed to mitigate

his/her damages by failing to properly (seek/accept ) comparable employment. The

burden of persuasion on this point is on the defendant. This means that the defendant

was required to present credible evidence which lea ds you to believe that it is more

likely than not that the plaintiff failed to mitigate or minimize his/her damages. 2

4. The defendant may establish this by introducing evidence that (1)

plaintiff made no effort or no reasonable effort to secure comparable employment, and

(2) other employment opportunities were available t hat were comparable to the

position plaintiff (lost/was denied). 3

5. The plaintiff may refute the defendant’s allegations by showing that (1)

she/he used reasonable and diligent efforts and was still unable to secure a comparable

job; (2) comparable employment did not exist; or (3) his/her particular circumstances

did not justify the acceptance of a dissimilar job.4

2 Goodman , 86 N.J . at 40; Sandler , 141 N.J. Super. at 455; Roselle v. La Fera Contracting Co. , 18

N.J. Super. 19, 28 (Ch. Div. 1952); Corbin on Contracts , Section 1039 at 251 (1964).

3 Goodman , 86 N.J. at 40.

4 Goodman , 86 N.J. at 36.

6. In deciding whether a job is comparable, in gen eral you are to consider

the nature of the responsibilities and skills required, the rate of pay, and the location.

The plaintiff need not accept employment which is u nsuitable and demeaning when

compared with the job plaintiff (was denied/lost). 5

7. In determining whether jobs are comparable, you may consider the

following other factors: 6

(1) the degree of risk involved to the plaintiff’ s health and safety;

(2) the plaintiff’s physical fitness and prior tr aining;

(3) the plaintiff’s work experience and prior ear nings;

(4) the plaintiff’s length of unemployment;

(5) the plaintiff’s prospects for securing local work in plaintiff’s customary occupation; and

(6) the distance of the available work from plainti ff’s residence. 7

8. Although the back pay award should be reduced b y any actual earnings, it

should not be reduced by any unemployment benefits or other unearned income the

5 Goodman , 86 N.J. at 37.

6 Only those factors relevant to the particular fact situation should be charged.

7 Goodman , 86 N.J. at 37, citing New Jersey’s Unemployment Compensation Law, N.J.S.A.

43:21-1 at 43:21-5(c)(1).

plaintiff may have received. 8 This means that the plaintiff had an obligation t o use

reasonable and diligent efforts to seek other comparable employment, and to accept it,

if it were offered.

B. Lowered Sights Doctrine

9

1. You are to bear in mind that the concept of job comparability is not a

static or stationary one. Instead, it may change with the passage of time and the state

of the job market. 10

2. This means that if the plaintiff has used dilig ent efforts over a reasonable

period of time and has still been unable to obtain a position which is comparable, then

she/he is required to lower his/her sights. 11

8 Sporn v. Celebrity, Inc. , 129 N.J. Super. 449, 453-60 (Law Div. 1974); Craig v. Y & Y Snacks,

Inc. , 721 F. 2d 77 (3d Cir. 1983).

9 This has been added as a relevant factor although not directly discussed in Goodman , but see

discussion, 86 N.J. at 41.

10 Goodman , 86 N.J . at 38.

11 Goodman , 86 N.J. at 38; N.L.R.B. v. Southern Silk Mills, Inc. , 242 F. 2d 697 (6th Cir.), cert.

den. , 335 U.S. 821 (1957); De Rose v. Bd. of Review , 6 N.J. Super. 164 (App. Div. 1950); Worsnop v.

Bd. of Review , 92 N.J. Super. 260 (App. Div. 1966).

3. Lowering one’s sights means that with the passa ge of time and the lack of

success in finding a comparable job, the plaintiff must begin considering jobs that offer

lower pay, or require different types of skills and responsibilities, or are in a more

distant location. 12

4. However, the doctrine of lowering one’s sights should not be automatically applied, and, in addition to the passage of t ime, you should consider the plaintiff’s individual circumstances, including, but not limited to: other skills or qualifications of the person; whether the person’s family st atus reasonably justifies enlarging

the geographic area wherein work is sought; the amount of salary reduction; the type

of alternate employment; and the impact of these factors on the plaintiff’s future. 13

5. If you find that plaintiff has lowered his/her sights and still cannot find a

job, no reduction in back pay is warranted. 14

12 Goodman , 86 N.J. at 40; Southern Silk Mills, Inc. , 242 F. 2d at 700; De Rose , 6 N.J. Super. at

166; Worsnop , 92 N.J. Super. at 266.

13 Goodman , 86 N.J. at 40; De Rose , 6 N.J. Super. at 166; Worsnop , 92 N.J. Super. at 266.

14 Goodman , 86 N.J. at 41.

6. If you conclude that the award of back pay to p laintiff should be reduced,

the amount of the reduction must be the greater of either (1) plaintiff’s actual earnings

or (2) the earnings plaintiff should have earned if she/he had obtained employment

after lowering his/her sights. 15

C. Effect of Voluntary Termination of Subsequent E mployment

1. The evidence in this case reveals that plaintif f obtained subsequent

employment. However, plaintiff then quit his/her n ew employment. The defendant

alleges that plaintiff quit that employment without good cause. If you find that the

defendant has proven, by a preponderance of the evi dence, that plaintiff quit his/her

subsequent employment without good cause, you are t o deem the plaintiff to have

voluntarily incurred the resultant losses. Consequently, any back pay award you make

in favor of the plaintiff must be reduced by the wages she/he could have continued to

earn in the subsequent employment if she/he had not quit.

2. For purposes of determining whether the plainti ff quit his/her subsequent

employment for good cause, you may consider, by way of example, not limitation, the

following factors: unsafe or unhealthful working conditions; harassment or discrimination; and any other reason that would warrant a reasonable employee to discontinue

15 Goodman , 86 N.J. at 43.

his/her employment. 16

3. If you find that the defendant failed to prove, by a preponderance of the

evidence, that plaintiff quit his/her subsequent employment without good cause, you

may award plaintiff back pay damages which are redu ced only by subsequent wages

actually earned. You may not reduce said damages by the amount plaintiff could have

earned.

D. Effect of Unconditional Offer of Employment or Re-employment by

Defendant Employer

NOTE TO JUDGE

This charge is to be used in the relatively rare in stance

where the defendant employer has offered either to (a) hire

plaintiff for the position applied for; or (b) reinstate plaintiff

to the position from which he/she was terminated.

16 Stonco Elec. Products Co. v. Board of Review , 106 N.J. Super. 6, 10-12 (App. Div. 1969);

Sanchez v. Board of Review , 206 N.J. Super. 617, 623-25 (App. Div. 1986); Doering v. Board of

Review , 203 N.J. Super. 241, 246-48 (App. Div. 1985); Inside Radio/Radio Only, Inc. v. Board of

Review , 204 N.J. Super. 296, 299-300; Goodman , 86 N.J. at 42; Sandler v. Lawn-A.Mat Chem. &

Equip. Corp. , 141 N.J. Super. 437, 455 (App. Div.), certif. denied , 71 N.J. 503 (1976); Roselle v. La

Fera Construction Co. , 18 N.J. Super. 19, 28 (Ch. Div. 1952); A. Corbin, Corbin on Contracts §1039

at 251 (1964); N.L.R.B. v. Southern Silk Mills , 242 F. 2d 697, 700 (6th Cir. 1957); N.J.S.A. 43:21-5.

1. The evidence in this case reveals that, subsequ ent to the defendant’s

(refusal to hire plaintiff/termination of plaintiff ’s employment), the defendant then

offered to (hire plaintiff for the position sought/ reinstate plaintiff to his/her former

position). Absent special circumstances, for purpo ses of determining the period of

back pay to which plaintiff is entitled in this matter, such an offer from the defendant

employer terminates the running of the back-pay period so long as the offer is unconditional. 17

2. The offer of (employment/re-employment) need no t be accompanied by,

e.g ., an offer of retroactive seniority or back pay to qualify as an unconditional offer.

If, however, the offer from the defendant employer to (hire plaintiff for the position

sought/reinstate plaintiff to the position from which he/she was terminated), is subject

to the plaintiff’s agreement to dismiss or waive co ntinued pursuit of his/her LAD

claims, the offer is conditional and does not termi nate the running of the back-pay

period. 18

17 Ford Motor Co. v. EEOC , 458 U.S. 219, 102 S.Ct. 3057, 73 L.Ed.2d. 721 (1982).

18 Ford Motor Co. , supra .

E. Impact of Finding of No Constructive Discharge

NOTE TO JUDGE

This charge is to be given at the end of the genera l charge

regarding constructive discharge.

If you find that plaintiff has failed to prove, by a preponderance of the evidence,

that she/he was constructively discharged as the result of intolerable conditions created

brought about, or tolerated by the defendant employer, then you must deny plaintiff’s

claim for damages, and rule in favor of the defendant employer on all causes of action

based on such constructive discharge.

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19 Muench v. Township of Haddon , 255 N.J. Super. 288, 302 (App. Div. 1992); Kass v. Brown

Boveri Corp. , 199 N.J. Super. 42, 56 (App. Div. 1985); Goss v. Exxon Office Systems Co. , 747 F. 2d .

885, 887-89 (3d Cir. 1984).