3d Cir. Model Jury Instr. (Civil) 11.3.2

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Last updated March 2026

Where the plaintiff compares her salary to more than one male employee, most courts have 1

held that the proper amount of damages is the difference between the plaintiff ’s pay and the 2

average amount of pay earned by the male comparables as a group. See, e.g., Melanson v. Rantoul, 3

536 F. Supp. 271 (D.R.I. 1982); Bullock v. Pizza Hut, Inc., 429 F. Supp. 424, 431 (M.D. La. 1977) 4

(stating that applying averages “best serves the interest of justice ”). At least one court, however, 5

has held that damages should be assessed by comparing the plaintiff’s wages “to the highest male 6

salary being paid for the job at the time of performance. ” Grimes v. Athens Newspaper, Inc., 604 7

F. Supp. 1166, 1168 (M.D. Ga. 1985). There appears to be no Third Circuit case law on this point. 8

Attorney Fees and Costs 9

There appears to be no uniform practice regarding the use of an instruction that warns the 10

jury against speculation on attorney fees and costs. In Collins v. Alco Parking Corp. , 448 F.3d 11

652 (3d Cir. 2006), the district court gave the following instruction: “You are instructed that if 12

plaintiff wins on his claim, he may be entitled to an award of attorney fees and costs over and 13

above what you award as damages. It is my duty to decide whether to award attorney fees and 14

costs, and if so, how much. Therefore, attorney fees and costs should play no part in your 15

calculation of any damages.” Id. at 656-57. The Court of Appeals held that the plaintiff had not 16

properly objected to the instruction, and, reviewing for plain error, found none: “We need not and 17

do not decide now whether a district court commits error by informing a jury about the availability 18

of attorney fees in an ADEA case. Assuming arguendo that an error occurred, such error is not 19

plain, for two reasons. ” Id. at 657. First, “it is not ‘obvious’ or ‘plain’ that an instruction 20

directing the jury not to consider attorney fees” is irrelevant or prejudicial; “it is at least arguable 21

that a jury tasked with computing damages might, absent information that the Court has discretion 22

to award attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense 23

of litigation.” Id. Second, it is implausible “that the jury, in order to eliminate the chance that 24

Collins might be awarded attorney fees, took the disproportionate step of returning a verdict 25

against him even though it believed he was the victim of age discrimination, notwithstanding the 26

District Court’s clear instructions to the contrary.” Id.; see also id. at 658 (distinguishing Fisher 27

v. City of Memphis, 234 F.3d 312, 319 (6th Cir. 2000), and Brooks v. Cook, 938 F.2d 1048, 1051 28

(9th Cir. 1991)). 29