3d Cir. Model Jury Instr. (Civil) 10.4.2

Model 2

If you find that [defendant] has violated [plaintiff ’s] rights under the Family and Medical 3

Leave Act, then you must determine the amount of damages that [defendant’s] actions have caused 4

[plaintiff]. [Plaintiff] has the burden of proving damages by a preponderance of the evidence. 5

You must award as actual damages an amount that reasonably compensates [plaintiff] for 6

any lost wages and benefits, taking into consideration any increases in salary and benefits, 7

including pension, that [plaintiff] would have received from [defendant] had [plaintiff ’s] rights 8

had not been violated. 9

[[Alternative One: For use in cases where the plaintiff asserts back-pay claims based on 10

more than one asserted FMLA violation, and some of those violations occurred earlier than two 11

years prior to the commencement of the lawsuit:] In this case, [plaintiff] alleges that [defendant] 12

willfully violated the Family and Medical Leave Act. If [plaintiff] proves to you by a 13

preponderance of the evidence that [defendant ’s] violation of the Family and Medical Leave Act 14

was willful, then this will have an effect on the damages that you must award. I will explain this 15

effect in a minute, but first I will provide you more information on what it means for a violation 16

to be “willful.”] 17

[[Alternative Two: For use in cases where all alleged FMLA violations occurred more 18

than two years prior to the commencement of the suit:] In this case, [plaintiff] alleges that 19

[defendant] willfully violated the Family and Medical Leave Act. You may only find for [plaintiff] 20

in this case if [plaintiff] proves to you by a preponderance of the evidence that [defendant ’s] 21

violation of the Family and Medical Leave Act was willful. Let me now give you more information 22

what it means for a violation to be “willful.”] 23

You must find [defendant’s] violation of the Family and Medical Leave Act to be willful 24

if [plaintiff] proves by a preponderance of the evidence that [defendant] knew or showed reckless 25

disregard for whether [describe challenged action] was prohibited by the law. To establish 26

willfulness it is not enough to show that [defendant] acted negligently. If you find that [defendant] 27

did not know, or knew only that the law was potentially applicable, and did not act in reckless 28

disregard for whether its conduct was prohibited by the law, then [defendant ’s] conduct was not 29

willful. 30

[[For use with Alternative One:] If you find that [defendant’s] violation of the Family and 31

Medical Leave Act was willful, then you must award [plaintiff] the amount of [his/her] lost wages 32

and benefits during the period starting [insert date, which will be no more than three years before 33

the date the lawsuit was filed] through the date of your verdict. However, if you find that 34

[defendant’s] violation of the Family and Medical Leave Act was not willful, then you must award 35

[plaintiff] the amount of [his/her] lost wages and benefits during the period starting [insert date, 36