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WPI 330.81.01 Employment Discrimination—Damages—Economic and Non-Economic—After-Acquired Eviden...

6A WAPRAC WPI 330.81.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.81.01 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part XVI. Employment

Chapter 330. Employment Discrimination

WPI 330.81.01 Employment Discrimination—Damages—Economic and Non-Economic—After-Acquired Evidence

It is the duty of the court to instruct you as to the measure of damages. By instructing you on damages, the court does not mean to suggest for which party your verdict should be rendered.

If your verdict is for(name of employee), you must determine the amount of money that will reasonably and fairly compensate(name of employee)for such damages as you find were proximately caused by the acts of(name of employer).

If you find for(name of employee), [your verdict shall include the following undisputed items:

(here insert undisputed items and amounts)

In addition,] you should consider the following elements:

[(1)] [The reasonable value of lost past earnings and fringe benefits, from the date of the wrongful conduct to the date of trial;]

[(2)] [The reasonable value of lost future earnings and fringe benefits;]

[(3)] [The physical harm to(name of employee);] [and]

[(4)] [The emotional harm to(name of employee)caused by(name of employer's)wrongful conduct, including [emotional distress] [loss of enjoyment of life] [humiliation] [pain and suffering] [personal indignity, embarrassment] [fear, anxiety, and/or anguish] experienced and with reasonable probability to be experienced by(name of employee)in the future].

[If you find that(name of employer)has proved its after-acquired evidence defense, you must calculate lost past earnings and fringe benefits from the date of termination to the date that additional evidence was discovered, and you may not award lost future earnings and fringe benefits.]

The burden of proving damages rests with the party claiming them, and it is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence.

Any award of damages must be based upon evidence and not upon speculation, guess, or conjecture. The law has not furnished us with any fixed standards by which to measure [emotional distress] [loss of enjoyment of life] [humiliation] [pain and suffering] [personal indignity, embarrassment] [fear, anxiety, and/or anguish]. With reference to these matters, you must be governed by your own judgment, by the evidence in the case, and by these instructions.

NOTE ON USE

Use this instruction instead of WPI 330.81 (Employment Discrimination—Damages—Economic and Non-Economic—No After-Acquired Evidence) in a wrongful termination case if there is evidence that (1) the employer discovered additional information after terminating the employee that was sufficient to support a lawful discharge and (2) the employer would have terminated the employee after discovering the information.

Use with WPI 330.81.02 (Employment Discrimination—Damages—After-Acquired Evidence).

COMMENT

The U.S. Supreme Court's opinion in McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 360–63, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), contains an extended discussion of the equitable basis for the after-acquired evidence doctrine.

The Washington Court of Appeals, Division Three, adopted the doctrine as set forth in McKennon in Janson v. North Valley Hospital, 93 Wn.App. 892, 971 P.2d 67 (1999). Division One followed suit in Goehle v. Fred Hutchinson Cancer Center, 100 Wn.App. 609, 1 P.3d 579 (2000), holding that after-acquired evidence could be admitted as relevant to the employee's credibility even if not used to limit damages.

In Lodis v. Corbis Holdings, Inc., 192 Wn.App. 30, 366 P.3d 1246 (2015) (“Lodis II”), the Court of Appeals erased any doubt as to the doctrine's viability:

“The ‘after-acquired evidence’ doctrine precludes or limits an employee from receiving remedies for wrongful discharge if the employer later ‘discovers’ evidence of wrongdoing that would have led to the employee's termination had the employer known of the misconduct.” An employer can avoid back pay and other remedies by coming forward with after-acquired evidence of an employee's misconduct, but only if it can prove by a preponderance of the evidence “that the wrongdoingwas of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.”

Lodis II, 192 Wn.App. at 60 (emphasis in original).

See also Weil v. Citizens Telecom Servs. Co., 2019 WL 5862965 (W.D. Wash. Nov. 8, 2019) (noting recovery of back pay or front pay by an employee who succeeds on the merits of their WLAD and Title VII discrimination claims may be limited where the employee would have been subsequently terminated for lawful or non-discriminatory reasons).

[Current as of November 2020.]

End of Document