WPI 330.83 Employment Discrimination—Damages—Mitigation—Wage Loss
6A WAPRAC WPI 330.83Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.83 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XVI. Employment
Chapter 330. Employment Discrimination
WPI 330.83 Employment Discrimination—Damages—Mitigation—Wage Loss
The plaintiff,(name of plaintiff), has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages.
To establish a failure to mitigate, defendant,(name of defendant), has the burden of proving:
(1) There were openings in comparable positions available for(name of plaintiff)elsewhere after(name of defendant)[terminated] [refused to hire] [him] [her];
(2) (Name of plaintiff)failed to use reasonable care and diligence in seeking those openings; and
(3) The amount by which damages would have been reduced if(name of plaintiff)had used reasonable care and diligence in seeking those openings.
You should take into account the characteristics of(name of plaintiff)and the job market in evaluating the reasonableness of(name of plaintiff's)efforts to mitigate damages.
If you find that(name of defendant)has proved all of the above, you should reduce your award of damages for wage loss accordingly.
NOTE ON USE
This instruction is to be used when the plaintiff challenges as discriminatory a discrete employment decision, such as a termination or a failure to hire. When mitigation of damages other than for wage loss is at issue, see WPI 33.02 (Avoidable Consequences—Failure to Secure Treatment).
Whether a mitigation instruction is used will typically depend on whether the employer has pleaded and offered proof on the defense.
COMMENT
This instruction is adapted from Burnside v. Simpson Paper Co., 66 Wn.App. 510, 529, 832 P.2d 537 (1992), affirmed, 123 Wn.2d 93, 864 P.2d 937 (1994), overruled on other grounds by Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 898 P.2d 284 (1995); see also Henningsen v. Worldcom, Inc., 102 Wn.App. 828, 846, 9 P.3d 948 (2000); Kloss v. Honeywell, Inc., 77 Wn.App. 294, 301–02, 890 P.2d 480 (1995). Washington cases have not defined “comparable position.”
Failure to mitigate damages is an affirmative defense under CR 8(c). Bernsen v. Big Bend Elec. Co-op., Inc., 68 Wn.App. 427, 433, 842 P.2d 1047 (1993); see also, Fed. Signal Corp. v.Safety Factors, Inc., 125 Wn.2d 413, 438, 886 P.2d 172 (1994); Burnside, 66 Wn.App. at 529.
Mitigation focuses on the reasonableness of the employee's conduct after the alleged discrimination has occurred. See Cobb v. Snohomish Cnty., 86 Wn.App. 223, 232, 935 P.2d 1384 (1997) (“The doctrine of avoidable consequences [i.e., the duty to mitigate] applies only to damages for harm the plaintiff could have avoided after the tort was committed.”); Bernsen, 68 Wn.App. at 433.
“Success [at mitigation] is not required, nor is the failure to earn a substantial income dispositive of the question of whether a[n] … employee exercised reasonable diligence.” Burnside, 66 Wn.App. at 530; see also Sutton v. Shufelberger, 31 Wn.App. 579, 581, 643 P.2d 920 (1982) (because the duty to mitigate only requires one to take reasonable steps, it is error to instruct jury the duty requires one to obtain another job).
[Current as of November 2020.]
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