Fill and Sign the Jury Instruction Discrimination Form

1.4.1 Age Discrimination In Employment Act 29 USC §§ 621-634 In this case the Plaintiff claims that the Defendant discriminated against the Plaintiff by [describe adverse employment action] because of the Plaintiff's age. The Defendant denies that [describe the disputed act and Defendant's defenses, if any]. Under federal law, it is unlawful for an employer to discharge or lay off or otherwise discriminate against any employee because of that employee's age, when the employee is at least 40 years of age. In order to prevail on this claim, the Plaintiff must prove each of the following facts by a preponderance of the evidence: First: That the Plaintiff was within the protected age group, that is, being at least 40 years of age; Second: That the Plaintiff was employed by the Defendant and was subsequently [describe adverse employment action] by the Defendant; and Third: That the Plaintiff's age was a substantial or motivating factor that prompted the Defendant to take that action. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] You should be mindful that the law applicable to this case requires only that an employer not discriminate against an employee because of the employee's age. So far as you are concerned in this case, an employer may discharge, refuse to promote or otherwise adversely affect an employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee to lead you to substitute your own judgment for that of the Defendant even though you personally may not approve of the action taken and would have acted differently under the circumstances. Neither does the law require an employer to extend any special or favored treatment to employees in the protected age group. On the other hand, it is not necessary for the Plaintiff to prove that age was the sole or exclusive reason for the Defendant's decision. It is sufficient if the Plaintiff proves that age was a determining consideration that made a difference in the Defendant’s decision. [If you find that the Plaintiff has established this claim, you will then consider the Defendant's defenses, as to which the Defendant bears the burden of proof by a preponderance of the evidence. The Defendant claims [that age is a part of a bona fide occupational qualification] [that the treatment of the Plaintiff was in accordance with the terms of a bona fide seniority system].] [It is not unlawful for an employer to [describe the adverse action] any employee when such action is based upon [a bona fide occupational qualification] [the terms of a bona fide seniority system].] [To establish a "bona fide occupational qualification," an employer has the burden of demonstrating reasonable cause to believe that all or substantially all of a class of applicants would be unable to perform a job safely and efficiently, and that the bona fide occupational qualification is "reasonably necessary to the essence" of the business operation.] [In order to qualify as a bona fide seniority system, the system must use the length of service as a primary criterion for the equitable allocation of available employment opportunities and prerogatives among younger and older workers.] To summarize, it is the burden of the Plaintiff to prove to your satisfaction by a preponderance of the evidence that the Defendant discriminated against the Plaintiff because of the Plaintiff's age. [However, should the Defendant seek to justify its adverse action toward the Plaintiff on the basis of a bona fide [occupational qualification] [seniority system] then it is the burden of the Defendant to prove to your satisfaction by a preponderance of the evidence that the Defendant did in fact take that action on the basis of a bona fide [occupational qualification] [seniority system]. If you are so convinced by a preponderance of the evidence, then you will find for the Defendant.] If you find that the Plaintiff has proved [his] [her] claim [and that the Defendant has not proved its affirmative defense], you must then determine the amount of damages the Plaintiff has sustained. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: (a) Net lost wages and benefits to the date of trial; (b) Net lost wages and benefits in the future [reduced to present value]. [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] If you find that the Defendant willfully violated the law, as claimed by the Plaintiff, then the Plaintiff is entitled to double damages. This means that the Court would award the damages you have calculated plus an equal amount as liquidated damages. If the employer knew that its adverse employment action was a violation of the law, or acted in reckless disregard of that fact, then its conduct was willful. If the employer did not know, or knew only that the law was potentially applicable, and did not act in reckless disregard as to whether its conduct was prohibited by the law, even if it acted negligently, then its conduct was not willful. 1.4.1 Age Discrimination In Employment Act 29 USC §§ 621-634 SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Plaintiff was employed by the Defendant and was subsequently [describe adverse employment action] by the Defendant? Answer Yes or No 2. That the Plaintiff’s age was a substantial or motivating factor that prompted the Defendant to take that action? Answer Yes or No [Note: If you answered No to either Question No. 1 or Question No. 2 you need not answer the remaining questions.] 3. That the Plaintiff should be awarded the following damages to compensate for a net loss of wages and benefits to the date of trial? Answer Yes or No If your answer is Yes, in what amount? $       4. That the Plaintiff should be awarded damages to compensate for a net loss of wages and benefits in the future [reduced to present value]? Answer Yes or No If your answer is Yes, in what amount? $       5. That the Defendant “willfully” violated the law (as that term is defined in the Court’s instructions)? Answer Yes or No SO SAY WE ALL. Foreperson DATED:       ANNOTATIONS AND COMMENTS The enforcement section of the ADEA, 29 U.S.C. § 626, incorporates the enforcement and damages provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Section § 216(b) of the Fair Labor Standards Act provides that: [a]ny employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. Section 216(b) further provides that the “court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” Section 216(b)’s liquidated damages provision is limited by § 626(b)’s provision that liquidated damages shall only be awarded in cases involving willful violations. In addition, §217 provides that the court may issue an injunction to enjoin violations of the ADEA and the FLSA. Lorilard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978) held that jury trial is available under the ADEA. Damages for pain and suffering are not recoverable under the ADEA. Dean v. American Security Ins. Co., 559 F.2d 1036 (5th Cir. 1977), cert. denied, 434 U.S. 1066, 98 S.Ct. 1243, 55 L.Ed.2d 767 (1978). Although the text of the ADEA makes available such legal and equitable relief as “may be appropriate”, the explicit incorporation into the ADEA of the remedial provisions of the Fair Labor Standards Act limits the damages which may be awarded to the actual monetary losses arising from the employment action. Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435 (11th Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985); Maleszewski v. United States, 827 F.Supp. 1553 (N.D. Fla. 1993). Thus, recovery is limited to lost wages and benefits, and compensatory damages for pain and suffering, emotional distress, etc. are not recoverable. Goldstein, 758 F.2d at 1446 (citing Dean, 559 F.2d at 1038 (no damages for pain and suffering)); Guthrie v. J. C. Penney Co., 803 F.2d 202, 208 (5th Cir. 1986) (same); Haskell v. Karman Corp., 743 F.2d 113, 120-21 (2d Cir. 1984) (no damages for emotional distress). See also Mitchell v. Sisters of Charity of Incarnate Word, 924 F.Supp. 793, 802 (S.D. Tex. 1996) (holding that amounts owing include unpaid wages and benefits but do not include damages for pain and suffering). Additionally, punitive damages are not recoverable under the ADEA. Goldstein, 758 F.2d at 1446; Dean, 559 F.2d at 1038-40. See also, Brunnemann v. Terra Intern., Inc., 975 F.2d 175 (5th Cir. 1992) (The text of the statute itself, though it permits the recovery of liquidated damages in cases of “willful violation”, does not provide for the recovery of punitive damages); Bruno v. Western Elec. Co., 829 F.2d 957 (10th Cir. 1987) (noting that all circuits which have ruled on this issue, have rejected punitive damages as a possible remedy under the ADEA). Courts have noted that the inclusion of the liquidated damages provision itself suggests that Congress foreclosed the possibility of punitive damages. See Bruno, 829 F.2d at 966; Dean, 559 F.2d at 1039. Jameson v. Arrow Co., 75 F.3d 1528 (11th Cir. 1996) (holding that in a reduction-in-force (RIF) case, a plaintiff must show that his or her employer intended to discriminate on the basis of age, in addition to demonstrating the other pertinent elements of an ADEA claim.) Corbin v. Southland Int’l. Trucks, 25 F.3d 1545 (11th Cir. 1994). Held, a terminated employee need not show that his or her replacement was under 40 (and, therefore, outside the ADEA’s protected class), but rather only that such replacement was younger and that the difference in their ages, along with other any other relevant evidence, is sufficient for a finder of fact to infer age discrimination therefrom. Similar to the Fair Labor Standards Act, the ADEA does not provide a cause of action for discrimination against an independent contractor. Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495 n.13 (11th Cir. 1993). The Eleventh Circuit has held that whether an ADEA plaintiff was, in fact, an “employee” of a defendant is a question of material fact to be determined by the jury. Id.; Garcia v. Copenhaver, Bell & Associates, M.D.’s, 104 F.3d 1256 (11th Cir. 1997) (holding that whether a defendant is an “employer” for purposes of the ADEA is a necessary element of a claim brought pursuant to that act and a question for the jury to decide). See also, Fountain v. Metcalf, Zima & Co., PA., 925 F.2d 1398 (11th Cir. 1991) (holding partner in an accounting firm was not an “employee” for purposes of bringing a claim under the ADEA). In an ADEA claim, the employee bears the ultimate burden of proving that age was a determining or substantial motivating factor in the employer’s decision to terminate the employee’s employment. Walker v. NationsBank of Florida, N.A., 53 F.3d 1548 (11 th Cir. 1995); Walls v. Button Gwinnett Bancorp, Inc., 1 F.3d 1198 (11th Cir. 1993); Young v. General Foods Corp., 840 F.2d 825 (11th Cir.1988), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989) Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 84 F.3d 1380 (11th Cir. 1996), superseded by Isenbergh, 97 F.3d 436 (11th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 2511, 138 L.Ed.2d 1014 (1997). Holding that a jury may not base its age discrimination determination on its sympathy for a particular plaintiff. The Eleventh Circuit set forth the standard for determining whether an employer’s violation of the ADEA was “willful,” thereby allowing the recovery of liquidated damages in Formby v. Farmers and Merchants Bank, 904 F.2d 627, 631-32 (11th Cir. 1990). Citing the Supreme Court’s decision in Trans World Airlines v. Thurston, 469 U.S. 111, 125-126 n.19, 105 S.Ct. 613, 624-25 n.19, 83 L.Ed.2d 523 (1985), the Eleventh Circuit held that liquidated damages cannot be imposed merely because an employer knew that the ADEA was potentially applicable or because the employer acted negligently in determining whether its conduct comported with the requirements of the ADEA. However, the plaintiff need not show evil motive, bad purpose, or intent to violate the ADEA in order to trigger liquidated damages. Rather, to prove entitlement to liquidated damages a plaintiff must establish that the employer knew its conduct was prohibited or showed reckless disregard for whether its conduct was prohibited by the Act. See also, Day v. Liberty Nat.Life Ins.Co., 122 F.3d 1012 (11th Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1797, 140 L.Ed.2d 938 (1998); Verbraeken v. Westinghouse Electric Corp., 881 F.2d 1041, 1048 (11th Cir.1989), cert. dismissed, 493 U.S. 1064, 110 S.Ct. 884, 107 L.Ed.2d 1012 (1990); Stanfield v. Answering Service, Inc., 867 F.2d 1290, 1296 (11th Cir. 1989); Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1561 (11th Cir.1988); Spanier v. Morrison's Management Services, 822 F.2d 975, 978 (11th Cir.1987); Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1099-1101 (11th Cir. 1987). Whether or not a willful violation has occurred is a question for the jury. Day, 122 F.3d at 1016; Castle v. Sangamo Weston, Inc., 837 F.2d 1550,1561(11th Cir.1988). With regard to reduction to present value of damages to be awarded for future losses, see Supplemental Damages Instruction No. 5.1, infra, and the Annotations and Comments that follow it, for commentary on when that instruction should be given.