Civil Model Jury Charge 2.33 Mitigation
of Economic Damages – Back Pay
(To be provided in conjunction with or following general
instructions regarding damages in a wrongful discharge or discrimination case)
A. General Mitigation Principles
1. If, in accordance with the principles of
law previously given to you, you find that the defendant is liable to the
plaintiff for damages which include back pay, you are to reduce the amount
awarded by all income which the plaintiff either earned or could have earned
from comparable employment if she/he had used reasonable and diligent efforts
to obtain such a position.[1]
2. The
back pay damages are to be reduced by earnings that plaintiff either earned or
could have earned because the law requires that the plaintiff use reasonable
and diligent efforts to mitigate or minimize the amount of damages she/he has
sustained.
3. In
this case, the defendant asserts that the plaintiff failed to mitigate his/her
damages by failing to properly (seek/accept) comparable employment. The burden of persuasion on this point is on
the defendant. This means that the
defendant was required to present credible evidence which leads you to believe
that it is more likely than not that the plaintiff failed to mitigate or
minimize his/her damages.[2]
4. The
defendant may establish this by introducing evidence that (1) plaintiff made no
effort or no reasonable effort to secure comparable employment, and (2) other
employment opportunities were available that were comparable to the position
plaintiff (lost/was denied).[3]
5.
The
plaintiff may refute the defendant’s allegations by showing that (1) she/he
used reasonable and diligent efforts and was still unable to secure a
comparable job; (2) comparable employment did not exist; or (3) his/her
particular circumstances did not justify the acceptance of a dissimilar job.[4]
6. In
deciding whether a job is comparable, in general you are to consider the nature
of the responsibilities and skills required, the rate of pay, and the
location. The plaintiff need not accept
employment which is unsuitable and demeaning when compared with the job
plaintiff (was denied/lost).[5]
7. In
determining whether jobs are comparable, you may consider the following other
factors:[6]
(1) the degree of risk involved to the plaintiff’s health and
safety;
(2) the plaintiff’s physical fitness and prior training;
(3) the plaintiff’s work experience and prior earnings;
(4) the plaintiff’s length of unemployment;
(5)
the plaintiff’s prospects for securing local work in plaintiff’s customary
occupation; and
(6) the
distance of the available work from plaintiff’s residence.[7]
8. Although
the back pay award should be reduced by any actual earnings, it should not be
reduced by any unemployment benefits or other unearned income the plaintiff may
have received.[8] This means that the plaintiff had an
obligation to use reasonable and diligent efforts to seek other comparable
employment, and to accept it, if it were offered.
B. Lowered Sights Doctrine[9]
1. You
are to bear in mind that the concept of job comparability is not a static or
stationary one. Instead, it may change
with the passage of time and the state of the job market.[10]
2. This
means that if the plaintiff has used diligent efforts over a reasonable period
of time and has still been unable to obtain a position which is comparable,
then she/he is required to lower his/her sights.[11]
3. Lowering
one’s sights means that with the passage of time and the lack of success in
finding a comparable job, the plaintiff must begin considering jobs that offer
lower pay, or require different types of skills and responsibilities, or are in
a more distant location.[12]
4. However,
the doctrine of lowering one’s sights should not be automatically applied, and,
in addition to the passage of time, you should consider the plaintiff’s
individual circumstances, including, but not limited to: other skills or qualifications of the person;
whether the person’s family status reasonably justifies enlarging the
geographic area wherein work is sought; the amount of salary reduction; the
type of alternate employment; and the impact of these factors on the
plaintiff’s future.[13]
5. If
you find that plaintiff has lowered his/her sights and still cannot find a job,
no reduction in back pay is warranted.[14]
6. If
you conclude that the award of back pay to plaintiff should be reduced, the
amount of the reduction must be the greater of either (1) plaintiff’s actual
earnings or (2) the earnings plaintiff should have earned if she/he had
obtained employment after lowering his/her sights.[15]
C. Effect
of Voluntary Termination of Subsequent Employment
1. The evidence in this case reveals that plaintiff obtained
subsequent employment. However, plaintiff
then quit his/her new employment. The
defendant alleges that plaintiff quit that employment without good cause. If you find that the defendant has proven, by
a preponderance of the evidence, that plaintiff quit his/her subsequent
employment without good cause, you are to deem the plaintiff to have
voluntarily incurred the resultant losses.
Consequently, any back pay award you make in favor of the plaintiff must
be reduced by the wages she/he could have continued to earn in the subsequent
employment if she/he had not quit.
2. For
purposes of determining whether the plaintiff quit his/her subsequent
employment for good cause, you may consider, by way of example, not limitation,
the following factors: unsafe or
unhealthful working conditions; harassment or discrimination; and any other
reason that would warrant a reasonable employee to discontinue his/her
employment.[16]
3. If
you find that the defendant failed to prove, by a preponderance of the
evidence, that plaintiff quit his/her subsequent employment without good cause,
you may award plaintiff back pay damages which are reduced only by subsequent
wages actually earned. You may not
reduce said damages by the amount plaintiff could have earned.
D. Effect
of Unconditional Offer of Employment or Re-employment by Defendant Employer
NOTE TO
JUDGE
This
charge is to be used in the relatively rare instance where the defendant
employer has offered either to (a) hire plaintiff for the position applied for;
or (b) reinstate plaintiff to the position from which he/she was terminated.
1. The
evidence in this case reveals that, subsequent to the defendant’s (refusal to
hire plaintiff/termination of plaintiff’s employment), the defendant then
offered to (hire plaintiff for the position sought/reinstate plaintiff to
his/her former position). Absent special
circumstances, for purposes of determining the period of back pay to which
plaintiff is entitled in this matter, such an offer from the defendant employer
terminates the running of the back-pay period so long as the offer is unconditional.[17]
2. The
offer of (employment/re-employment) need not be accompanied by, e.g., an
offer of retroactive seniority or back pay to qualify as an unconditional
offer. If, however, the offer from the
defendant employer to (hire plaintiff for the position sought/reinstate
plaintiff to the position from which he/she was terminated), is subject to the
plaintiff’s agreement to dismiss or waive continued pursuit of his/her LAD
claims, the offer is conditional and does not terminate the running of
the back-pay period.[18]
E.
Impact of Finding of No Constructive Discharge
NOTE TO
JUDGE
This
charge is to be given at the end of the general charge regarding constructive
discharge.
If you find that plaintiff has failed to prove, by a preponderance of
the evidence, that she/he was constructively discharged as the result of
intolerable conditions created brought about, or tolerated by the defendant
employer, then you must deny plaintiff’s claim for damages, and rule in favor
of the defendant employer on all causes of action based on such constructive
discharge.[19]
[1] Goodman
v. London Metals Exchange, Inc., 86 N.J. 19, 34 (1981); Sandler
v. Lawn-A-Mat Chem. and Equip. Corp., 141 N.J. Super. 437, 455 (App. Div.), certif. den., 71 N.J. 503
(1976); Rogozinski v. Airstream by Angell,
152 N.J. Super. 133, 158 (Law Div.
1977), modified, 164 N.J. Super. 465 (App. Div. 1979).
[2] Goodman, 86 N.J.
at 40; Sandler, 141 N.J. Super. at 455; Roselle v. La Fera Contracting Co., 18 N.J. Super. 19, 28 (Ch. Div. 1952); Corbin on Contracts, Section 1039 at 251 (1964).
[8] Sporn v.
Celebrity, Inc., 129 N.J. Super. 449, 453-60 (Law Div. 1974);
Craig v. Y & Y Snacks, Inc., 721 F. 2d 77 (3d Cir. 1983).
[9] This has been added as a relevant factor although
not directly discussed in Goodman,
but see discussion, 86 N.J. at 41.
[12] Goodman, 86 N.J.
at 40; Southern Silk Mills, Inc., 242
F. 2d at 700; De Rose, 6 N.J. Super. at
166; Worsnop, 92 N.J. Super. at 266.
[16] Stonco
Elec. Products Co. v. Board of Review, 106 N.J. Super. 6, 10-12
(App. Div. 1969); Sanchez v. Board of
Review, 206 N.J. Super. 617,
623-25 (App. Div. 1986); Doering v. Board
of Review, 203 N.J. Super. 241,
246-48 (App. Div. 1985); Inside
Radio/Radio Only, Inc. v. Board of Review, 204 N.J. Super. 296, 299-300; Goodman, 86 N.J. at 42; Sandler v. Lawn-A.Mat Chem. & Equip.
Corp., 141 N.J. Super. 437, 455
(App. Div.), certif. denied, 71 N.J. 503 (1976); Roselle v. La Fera Construction Co., 18 N.J. Super. 19, 28 (Ch. Div. 1952); A. Corbin, Corbin on Contracts §1039 at 251 (1964); N.L.R.B. v. Southern Silk Mills, 242 F. 2d 697, 700 (6th Cir. 1957); N.J.S.A.
43:21-5.
