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WPI 330.81.02 Employment Discrimination—Damages—After-Acquired Evidence

6A WAPRAC WPI 330.81.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.81.02 (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 330.81.02 Employment Discrimination—Damages—After-Acquired Evidence

(Name of employer)contends that even if(name of employee)had not been terminated on [date], [he] [she] would have been terminated based on the additional evidence(name of employer)discovered [at a later date] [during its investigation into his/her complaint of wrongful termination] [during the course of this lawsuit]. If(name of employer)proves by a preponderance of the evidence that it would have terminated(name of employee)based on this additional evidence, you must calculate any award of lost past earnings from the date of termination to the dateadditional evidence was discovered and you may not award any lost future earnings.

NOTE ON USE

Use this instruction 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 termination and (2) the employer would have terminated the employee after discovering the information.

Use with WPI 330.81.01 (Employment Discrimination—Damages—Economic and Non-Economic—After-Acquired Evidence) if it has been raised as an affirmative defense.

Use bracketed material as applicable. Insert names of parties where appropriate.

COMMENT

In Lodis v. Corbis Holdings, Inc., 192 Wn.App. 30, 366 P.3d 1246 (2015) (“Lodis II”), the Court of Appeals stated:

“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 wrongdoing was 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 Goehle v. Fred Hutchinson Cancer Ctr., 100 Wn.App. 609, 1 P.3d 579 (2000); Janson v. N. Valley Hosp., 93 Wn.App. 892, 971 P.2d 67 (1999).

[Current as of November 2020.]

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