5th Cir. Pattern Jury Instr. (Civil) 11.18

A. Committee Notes

Although this charge may be used in ADEA cases,

it must be adapted based on the causation standard

that applies.

Under the Fair Labor Standards Act, a prevailing

plaintiff may be awarded liquidated damages. See 29

U.S.C. § 216(b).

1

The ADEA incorporates some of the

FLSA’s remedial provisions. See 29 U.S.C. § 626(b).

When there is a finding that an ADEA violation was

willful, the plaintiff may be awarded liquidated damages, which is the amount the jury calculates plus an

equal amount. Front pay is not included in a liquidated

damages award.

2

Rather, a liquidated damages award

is limited to double the amount of back pay and

benefits.

3

Back pay encompasses what the plaintiff would

have received in compensation but-for the employer’s

ADEA violation. Palasota v. Haggar Clothing Co. , 499

F.3d 474, 482–83 (5th Cir. 2007). In general, back pay

liability in a wrongful-termination case begins when

the discriminatory conduct causes economic injury and

ends when judgment is entered. Palasota, 499 F.3d at

482–83.

Neither punitive damages nor compensatory damages for pain and suffering are recoverable under the

ADEA. Hazen Paper Co. v. Biggins , 507 U.S. 604, 615

(1993); Trans World Airlines, Inc. v. Thurston , 469 U.S.

111, 125 (1985); Vaughan v. Anderson Reg’l Med. Ctr. ,

849 F.3d 588, 594 (5th Cir. 2017); West v. Nabors Drilling USA, Inc. , 330 F.3d 379, 391–92 (5th Cir. 2003).

1See Lubke v. City of Arlington , 455 F .3d 489, 499 (5th Cir. 2006).

2Front pay is recoverable under the ADEA. Miller v. Raytheon Co. ,

716 F .3d 138, 148–49 (5th Cir. 2013). Reasonable attorney’s fees are also

recoverable, but prejudgment interest is not. Miller, 716 F .3d at 148-49.

3Lubke, 455 F .3d at 499.

11.18EMPLOYMENT CLAIMS

247

B. Charge

If you found that Defendant [name] violated the

ADEA, then you must determine whether it has caused

Plaintiff [name] damages. If so, you must determine

the amount. You should not conclude from the fact that

I am instructing you on 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.

4

You should consider the following elements of damages, and no others: the amounts the evidence shows

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

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

promoted] [not been demoted] [identify other applicable

status] to the date of your verdict, including benefits

such as life and health insurance,

5

stock options, or

contributions to retirement, minus the amounts of earnings and benefits, if any, that Defendant [name] proves

by a preponderance of the evidence Plaintiff [name]

received in the interim.

6

(For cases in which failure to mitigate is asserted) Defendant [name] asserts that Plaintiff [name]

4Lowe v. Southmark Corp. , 998 F .2d 335, 337 (5th Cir. 1993).

5Damages for lost insurance benefits are recoverable only if the

plaintiff shows that he or she actually incurred these expenses by replacing the lost insurance or suffering the insured risk. Lubke, 455 F .3d at 499

(citing Pearce v. Carrier Corp. , 966 F .2d 958 (5th Cir. 1992)).

6Palasota, 499 F .3d at 482–83; Marks v. Prattco , 633 F .2d 1122, 1125

(5th Cir. 1981).