3d Cir. Model Jury Instr. (Civil) 6.4.3

Model 2

If you find that [defendant -employer] intentionally discriminated against [plaintiff] in 3

[describe employment action] [plaintiff], then you must determine the amount of damages that 4

[defendant’s] actions have caused [plaintiff]. [Plaintiff] has the burden of proving damages by a 5

preponderance of the evidence. 6

You may award as actual damages an amount that reasonably compensates [plaintiff] for 7

any lost wages and benefits, taking into consideration any increases in salary and benefits, 8

including pension, that [plaintiff] would have received from [defendant] had [plaintiff] not been 9

the subject of [defendant’s] intentional discrimination. 10

Back pay damages, if any, apply from the time [plaintiff] was [describe adverse 11

employment action] until the date of your verdict. 12

You must reduce any award by the amount of the expenses that [plaintiff] would have 13

incurred in making those earnings. 14

If you award back pay, you are instructed to deduct from the back pay figure whatever 15

wages [plaintiff] has obtained from other employment during this period. However, please note 16

that you should not deduct social security benefits, unemployment compensation and pension 17

benefits from an award of back pay. 18

[You are further instructed that [plaintiff] has a duty to mitigate [his/her] damages--that is 19

[plaintiff] is required to make reasonable efforts under the circumstances to reduce [his/her] 20

damages. It is [defendant’s] burden to prove that [plaintiff] has failed to mitigate. So if [defendant] 21

persuades you, by a preponderance of the evidence, that [plaintiff] failed to obtain substantially 22

equivalent job opportunities that were reasonably available to [him/ her], you must reduce the 23

award of damages by the amount of the wages that [plaintiff] reasonably would have earned if 24

[he/she] had obtained those opportunities.] 25

26

[Add the following instruction if the employer claims “after-acquired evidence ” of 27

misconduct by the plaintiff: 28

[Defendant-employer] contends that it would have made the same decision to [describe 29