5th Cir. Pattern Jury Instr. (Civil) 11.14

224

damages that I have any opinion as to whether Plaintiff

[name] has proved liability.

Plaintiff [name] must prove [his/her] damages by a

preponderance of the evidence. Your award must be

based on evidence and not on speculation or guesswork.

On the other hand, Plaintiff [name] need not prove the

amount of [his/her] losses with mathematical precision,

but only with as much definitiveness and accuracy as

the circumstances permit.

1

You should consider the following elements of

actual damages, and no others: (1) the amount of back

pay and benefits Plaintiff [name] would have earned in

[his/her] employment with Defendant [name] if [he/she]

had not been [specify challenged employment action]

from [date of adverse employment action] to the date of

your verdict, minus the amount of earnings and benefits

that Plaintiff [name] received from employment during

that time; (2) the amount of other damages

2

sustained

by Plaintiff [name] [list recoverable elements supported

by the evidence, such as pain, suffering, inconvenience,

mental anguish, loss of enjoyment of life, and other

noneconomic losses].

3

Back pay includes the amounts the evidence shows

Plaintiff [name] would have earned had [he/she]

[remained an employee of Defendant [name]] [been

promoted] [not been demoted] [other applicable

circumstance]. These amounts include wages or salary

and such benefits as life and health insurance, stock

options, and contributions to retirement. You must

1Lowe v. Southmark Corp. , 998 F .2d 335, 337 (5th Cir. 1993).

2For additional instructions on compensatory damages, see Pattern

Jury Instruction 10.12.

3This charge does not include front pay—future lost wages and

benefits—because they are an equitable remedy for the court to determine.

Section 1981a also provides that while a plaintiff may recover for “future

pecuniary losses,” that does not include “front” or future lost pay . Pollard

v. E.I. duPont de Nemours & Co. , 532 U.S. 843 (2001).

11.14EMPLOYMENT CLAIMS

225

subtract the amounts of earnings and benefits Defendant [name] proves by a preponderance of the evidence

Plaintiff [name] received during the period in question.

4

(If the defendant asserts and provides evidence that the plaintiff failed to mitigate damages, the following charge should be given.)

5

Defendant claims that Plaintiff [name] failed to mitigate [his/her] damages. Plaintiff [name] has a duty

under the law to mitigate [his/her] damages, that is, to

exercise reasonable diligence under the circumstances

to minimize [his/her] damages.

To succeed on this defense, Defendant [name] must

prove, by a preponderance of the evidence: (a) that there

was substantially equivalent employment available; (b)

Plaintiff [name] failed to use reasonable diligence in

seeking those positions; and (c) the amount by which

4Marks v. Prattco , 633 F .2d 1122, 1125 (5th Cir. 1981).

5This charge may be used in conjunction with Charge 15.5. This

charge should be used only when the defendant asserts the affirmative

defense that the plaintiff failed to mitigate his or her damages. See Garcia

v. Harris Cty., No. H-16-2134, 2019 WL 132382, at *2 (S.D. Tex. Jan. 8,

2019) (“Courts have specifically acknowledged that, in the failure to mitigate context, the Sparks decision controls over the West and other later

conflicting decisions.”).

Earlier versions of this instruction included the following language:

“If Defendant proves that Plaintiff has not made reasonable efforts to

obtain work, Defendant does not have to establish the availability of

substantially equivalent employment.” Authority exists for this instruction.

See Sellers v. Dellgado Coll. , 902 F .2d 1189, 1193 (5th Cir. 1990); see also

West v. Nabors Drilling USA, Inc. , 330 F .3d 379, 393 (5th Cir. 2003). But

recent district court cases have observed that Sellers conflicts with the

previously decided Sparks v. Griffin , 460 F .2d 433, 443 (5th Cir. 1972),

which required that defendant prove that “there were jobs available which

appellant could have discovered and for which she was qualified.” See,

e.g., Newcomb v. Corinth Sch. Dist. , No. 1:12-CV-0204-SA-DAS, 2015 WL

1505839, at *7 (N.D. Miss. Mar. 31, 2015) (applying Sparks under rule of

orderliness); Buckingham v. Booz Allen Hamilton, Inc. , 64 F . Supp. 3d

981, 984 (S.D. Tex. 2014) (same). But see E.E.O.C. v. IESI Louisiana Corp. ,

720 F . Supp. 2d 750, 755 (W .D. La. 2010) (recognizing the Sparks

“resurgence” but opting to follow the “newer” standard). Given this history , the Committee conclude that this language should not remain in a

pattern instruction but that courts and counsel should be aware of the

split.