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11 PJI 3.7 | Third Circuit (US)
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11 PJI 3.7 | EPA | DAMAGES FOR RETALIATION

If you find that [plaintiff] has proved by a preponderance of the evidence that she suffered an adverse employment action as a result of [describe protected activity] then you must determine the amount of damages suffered by [plaintiff] as a result of [defendant’s] retaliation. Damages for retaliation are distinct from any damages [plaintiff] may be entitled to for having been paid a lower wage than male employees for equal work. [Plaintiff] has the burden of proving damages from the retaliation by a preponderance of the evidence.

The following are the kinds of damages that the law may allow a plaintiff to recover when an employer retaliates against the plaintiff for engaging in protected activity under the Equal Pay Act:

1. Compensatory damages.

2. Nominal damages.

3. Punitive damages.


Not all of these damages are necessarily available in any single action. Remember that [plaintiff] has the burden of proving by a preponderance of the evidence that she is entitled to any of the damages that the law makes potentially available to her for an act of retaliation.

I will now instruct you on each of the kinds of damages that are potentially recoverable by [plaintiff] for an act of retaliation.

Compensatory damages:

If you find [defendant] liable for retaliation, then you must consider the issue of compensatory damages. You must award [plaintiff] an amount that will fairly compensate her for any injury she actually sustained as a result of [defendant’s] conduct. The damages that you award must be fair compensation, no more and no less. The award of compensatory damages is meant to put [plaintiff] in the position [he/she] would have occupied if the retaliation had not occurred.

[Plaintiff] must show that the damage she claimed would not have occurred without [defendant’s] retaliation. [Plaintiff] must also show that [defendant’s] act of retaliation played a substantial part in bringing about the injury, and that the injury was either a direct result or a reasonably probable consequence of [defendant’s] act of retaliation. [There can be more than one cause of an injury. To find that [defendant’s] retaliation caused [plaintiff]’s injury, you need not find that [defendant’s] act was the nearest cause, either in time or space. However, if [plaintiff’s] claimed injury was caused by a later, independent event that intervened between [defendant’s] act of retaliation and [plaintiff’s] injury, [defendant] is not liable unless the injury was reasonably foreseeable by [defendant].]

Compensatory damages must not be based on speculation or sympathy. They must be based on the evidence presented at trial, and only on that evidence.

[Plaintiff] claims the following items of damages [include any of the following that are warranted by the evidence]:

● Physical harm to [plaintiff] during and after the events at issue, including ill health, physical pain, disability, or discomfort, and any such physical harm that [plaintiff] is reasonably certain to experience in the future. In assessing such harm, you should consider the nature and extent of the injury and whether the injury is temporary or permanent.

● Emotional and mental harm to [plaintiff] during and after the events at issue, including humiliation, and mental anguish, and any such emotional and mental harm that [plaintiff] is reasonably certain to experience in the future.

● The reasonable value of the medical [psychological, hospital, nursing, and similar] care and supplies that [plaintiff] reasonably needed and actually obtained, and the reasonable value of such care and supplies that [plaintiff] is reasonably certain to need in the future.

● The [wages, salary, profits, reasonable value of the working time] that [plaintiff] has lost because of [defendant’s] retaliation, and the [wages, etc.] that [plaintiff] is reasonably certain to lose in the future because of that retaliation.13


As I instructed you previously, [plaintiff] has the burden of proving damages by a preponderance of the evidence. But the law does not require that [plaintiff] prove the amount of her losses with mathematical precision; it requires only as much definiteness and accuracy as circumstances permit.

[You are instructed that [plaintiff] has a duty under the law to "mitigate" her damages -- that means that [plaintiff] must take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage caused by [defendant]. So if [defendant] persuades you by a preponderance of the evidence that [plaintiff] failed to take advantage of an opportunity that was reasonably available to her, then you must reduce the amount of [plaintiff’s] damages by the amount that could have been reasonably obtained if she had taken advantage of such an opportunity.]

[In assessing damages, you must not consider attorney fees or the costs of litigating this case. Attorney fees and costs, if relevant at all, are for the court and not the jury to determine. Therefore, attorney fees and costs should play no part in your calculation of any damages.]

Nominal Damages:

If you return a verdict for [plaintiff] on her retaliation claim, but [plaintiff] has failed to prove actual injury resulting from the act of retaliation and therefore is not entitled to compensatory damages, then you must award nominal damages of $ 1.00.

A person whose federal rights were violated is entitled to a recognition of that violation, even if she suffered no actual injury. Nominal damages (of $1.00) are designed to acknowledge the deprivation of a federal right, even where no actual injury occurred.

However, if you find actual injury, you must award compensatory damages (as I instructed you), rather than nominal damages.

Punitive Damages:

[Plaintiff] claims that [defendant’s] act of retaliation was done with malice or reckless indifference to [plaintiff's] federally protected rights and that as a result there should be an award of what are called “punitive” damages. A jury may award punitive damages to punish a defendant, or to deter the defendant and others like the defendant from committing such conduct in the future. [Where appropriate, the jury may award punitive damages even if the plaintiff suffered no actual injury, and so received nominal rather than compensatory damages.]

An award of punitive damages is permissible in this case only if you find by a preponderance of the evidence that a management official of [defendant] personally acted with malice or reckless indifference in retaliating against [plaintiff] after she [describe protected activity]. An action is with malice if a person knows that it violates the federal law prohibiting retaliation and does it anyway. An action is with reckless indifference if taken with knowledge that it may violate the law.

[For use where the defendant raises a jury question on good-faith attempt to comply with the law:

But even if you make a finding that there has been an act of retaliation with malice or reckless disregard of [plaintiff’s] federal rights, you cannot award punitive damages if [defendant] proves by a preponderance of the evidence that it made a good-faith attempt to comply with the law, by adopting policies and procedures designed to prevent unlawful retaliation such as that suffered by [plaintiff].]

An award of punitive damages is discretionary; that is, if you find that the legal requirements for punitive damages are satisfied [and that [defendant] has not proved that it made a good-faith attempt to comply with the law], then you may decide to award punitive damages, or you may decide not to award them. I will now discuss some considerations that should guide your exercise of this discretion.

If you have found the elements permitting punitive damages, as discussed in this instruction, then you should consider the purposes of punitive damages. The purposes of punitive damages are to punish a defendant for a malicious or reckless disregard of federal rights, or to deter a defendant and others like the defendant from doing similar things in the future, or both. Thus, you may consider whether to award punitive damages to punish [defendant]. You should also consider whether actual damages standing alone are sufficient to deter or prevent [defendant] from again performing any wrongful acts it may have performed. Finally, you should consider whether an award of punitive damages in this case is likely to deter others from performing wrongful acts similar to those [defendant] may have committed.

If you decide to award punitive damages, then you should also consider the purposes of punitive damages in deciding the amount of punitive damages to award. That is, in deciding the amount of punitive damages, you should consider the degree to which [defendant] should be punished for its wrongful conduct, and the degree to which an award of one sum or another will deter [defendant] or others from committing similar wrongful acts in the future.

[The extent to which a particular amount of money will adequately punish a defendant, and the extent to which a particular amount will adequately deter or prevent future misconduct, may depend upon the defendant’s financial resources. Therefore, if you find that punitive damages should be awarded against [defendant], you may consider the financial resources of [defendant] in fixing the amount of those damages.]

COMMENT 29 U.S.C. § 216(b) provides for the following recovery for a violation of the anti-retaliation provision of the Equal Pay Act (or the Fair Labor Standards Act):
“such legal or equitable relief as may be appropriate to effectuate the purposes of [the anti-retaliation provision] including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.” The instruction authorizes the jury to award all of the damages generally awarded for an injury at common law. Any other remedies, such as reinstatement or promotion, are equitable remedies left for the court. See generally Brock v. Richardson, 812 F.2d 121, 123 (3d Cir. 1987) (stating that the anti-retaliation provision is to be “liberally interpreted” and affirming an award of back pay).

In Marrow v. Allstate Sec. & Investigative Services, Inc., 167 F. Supp. 2d 838, 841 (E.D. Pa. 2001), the court held that punitive damages could be awarded for a violation of the anti-retaliation provision of the Fair Labor Standards Act, 29 U.S.C. § 215, which applies to the Equal Pay Act as well. The court noted that section 216 “authorizes ‘legal’ relief, a term commonly understood to include compensatory and punitive damages.” See also Travis v. Gary Community Mental Health Center, 921 F.2d 108, 112 (7th Cir. 1990) (“Compensation for emotional distress, and punitive damages, are appropriate for intentional torts such as retaliatory discharge.”).

If the jury awards lost wages for retaliation, it is for the court to double the amount as liquidated damages, subject to reduction by the court if the defendant proves that the violation was in good faith. See the Comment to Instruction 11.3.4.

Attorney Fees and Costs

There appears to be no uniform practice regarding the use of an instruction that warns the jury against speculation on attorney fees and costs. In Collins v. Alco Parking Corp., 448 F.3d 652 (3d Cir. 2006), the district court gave the following instruction: “You are instructed that if plaintiff wins on his claim, he may be entitled to an award of attorney fees and costs over and above what you award as damages. It is my duty to decide whether to award attorney fees and costs, and if so, how much. Therefore, attorney fees and costs should play no part in your calculation of any damages.” Id. at 656-57. The Court of Appeals held that the plaintiff had not properly objected to the instruction, and, reviewing for plain error, found none: “We need not and do not decide now whether a district court commits error by informing a jury about the availability of attorney fees in an ADEA case. Assuming arguendo that an error occurred, such error is not plain, for two reasons.” Id. at 657. First, “it is not ‘obvious’ or ‘plain’ that an instruction directing the jury not to consider attorney fees” is irrelevant or prejudicial; “it is at least arguable that a jury tasked with computing damages might, absent information that the Court has discretion to award attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense of litigation.” Id. Second, it is implausible “that the jury, in order to eliminate the chance that Collins might be awarded attorney fees, took the disproportionate step of returning a verdict against him even though it believed he was the victim of age discrimination, notwithstanding the District Court's clear instructions to the contrary.” Id.; see also id. at 658 (distinguishing Fisher v. City of Memphis, 234 F.3d 312, 319 (6th Cir. 2000), and Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir. 1991)).

(Last Updated October 2018)

Footnotes

13 If the court orders the plaintiff’s reinstatement, then the instruction on future lost wages should not be given.

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