9th Cir. Model Jury Instr. (Civil) 11.13

If you find for the plaintiff [name] [on the plaintiff’s ADEA claim], you must determine the plaintiff [name]’s damages. Damages means the amount of money that will reasonably and fairly compensate the plaintiff for any loss of [pay] [wages] [benefits] you find was caused by the discriminatory act of the defendant [name]. You may award the following:

Back Pay:

1. Award: Back pay includes any [back wages] [lost pay] [and employee benefits] the plaintiff would have received from the date the defendant [name] [discharged] [failed to hire] [failed to promote] [demoted] [state other adverse employment action] the plaintiff [name] to the [date of trial] [date the plaintiff [declined] [accepted] reinstatement]]. The plaintiff [name] has the burden of proving both the existence and the amount of back pay by a preponderance of the evidence.

2. Mitigation of Back Pay Award: The plaintiff [name] has a duty to undertake reasonable measures to minimize [his] [her] [other pronoun] damages and the defendant [name] is not required to compensate the plaintiff [name] for avoidable damages. Thus, your award of back pay should be reduced by the amount of damages that the plaintiff [name] actually avoided, or could have avoided, if [he] [she] [other pronoun] had made reasonable efforts. The defendant [name] has the burden of proving by a preponderance of the evidence that a reduction should be made and the amount by which the award should reduced.

Therefore:

a. You must deduct any wages or other earnings that the defendant [name] proved that the plaintiff [name] received from other employment from the date the defendant [name] [discharged] [failed to hire] [failed to promote] [demoted] [state other adverse employment action] the plaintiff [name] to the [date of trial] [date the plaintiff [declined] [accepted] reinstatement].

[b. You must deduct any severance pay [and pension benefits] that the defendant [name] proved the plaintiff [name] received after the discharge.]

[b.] [c.] If the defendant [name] proves by a preponderance of the evidence either:

(i) that the plaintiff [name] unjustifiably failed to take a new job of like kind, status, and pay which was available to plaintiff [name], or

(ii) that the plaintiff [name] failed to make reasonable efforts to find such new job;

you must subtract from the back pay award the amount of money you find that the plaintiff [name] could have earned from the time the plaintiff [name] could have obtained such new job [or should have obtained from such new job, had [he] [she] [other pronoun] made reasonable efforts to find such new job] to the [date of trial] [date the plaintiff [name] [declined] [accepted] reinstatement].]