5th Cir. Pattern Jury Instr. (Civil) 11.22

270

dated damages award is a question for the judge, not

the jury.

The FMLA has been interpreted to authorize jury

trials. See Frizzell v. Sw. Motor Freight , 154 F.3d 641,

644 (6th Cir. 1998) (holding that a request for damages

under FMLA triggers a statutory right to a jury trial);

accord Wages v. Stuart Mgmt. Corp. , 798 F.3d 675, 681

(8th Cir. 2015). A jury trial is appropriate to decide

back pay, but equitable issues such as reinstatement

and front pay should be decided by the court. See 29

U.S.C. § 2617(a)(1)(B) (permitting a prevailing employee to recover “such equitable relief as may be appropriate, including employment, reinstatement, and

promotion”).

B. Charge

If you found that Defendant [name] violated the

FMLA, then you must determine whether those violations 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 certainty and accuracy as the

circumstances permit.

1

You should consider the following elements of damages and no others: any wages, salary, employment

benefits, or other compensation denied or lost because

of Defendant [name]’s violation of the FMLA, if any.

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

11.22EMPLOYMENT CLAIMS

271

Wages, salary, and benefits include the amounts

the evidence shows Plaintiff [name] would have earned

had [he/she] [remained an employee of Defendant

[name] [been promoted] [not been demoted] from [date]

to the date of your verdict, including benefits such as

life and health insurance,

2

stock options, or contributions to retirement, minus the amounts of earnings and

benefits, if any, Defendant [name] proves by a preponderance of the evidence Plaintiff [name] received from

employment during that time.

3

(For cases in which failure to mitigate is asserted)

4

Defendant [name] asserts that Plaintiff [name]

failed to mitigate [his/her] damages. To prevail on this

defense, Defendant [name] must show, 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 Plaintiff [name]’s

damages were increased by [his/her] failure to take such

reasonable actions.

5

2Other elements of compensatory damages and consequential damages are not recoverable. See Nero v. Indus. Molding , 167 F .3d 921, at

922–32 (5th Cir. 1999). “[T]he correct measure of damages for lost insurance benefits in FMLA cases is either actual replacement cost for the insurance, or expenses actually incurred that would have been covered

under a former insurance plan. The lost ‘value’ of benefits, absent actual

costs to the plaintiff, is not recoverable.” Lubke v. City of Arlington , 455

F .3d 489, 499 (5th Cir. 2006).

3Jurgens v. EEOC , 903 F .2d 386, 390–91 (5th Cir. 1990) (quoting

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

4This charge may be used in conjunction with Pattern Jury Instruction 15.5.

5Ellerbrook v. City of Lubbock, Tex. , 465 F . App’x. 324, 337 (5th Cir.

2012); V aughn v. Sabine Cty., 104 F . App’x 980, 984 (5th Cir. 2004); 50-Off

Stores, Inc. v. Banques Paribas (Suisse), S.A. , 180 F .3d 247, 258 (5th Cir.

1999). District courts have given juries the same instruction that the Fifth

Circuit gives for Title VII and ADEA claims, for the “failure-to-mitigate”

defense under the FMLA. See, e.g. , Firth v. Don McGrill of W. Hous., Ltd.,

No. H-04-0659, 2006 WL 846377, at *3 (S.D. Tex. Mar. 28, 2006), aff’d by

Firth v. McGill , 233 F . App’x 346 (5th Cir. 2007) (per curiam); Newcomb v.

Corinth Sch. Dist. , No. 1:12-cv-204-SA-DAS, at *10 (N.D. Miss. Mar. 31,

2015) (under the FMLA, a defendant may invoke “failure to mitigate” as