PJC Business 2024

PJC 115.30

D AMAGES

COMMENT When to use. PJC 115.30 should be predicated on a “Yes” answer to PJC 107.6. Source of question and instruction. PJC 115.30 is based on Tex. Lab. Code §§21.258, 21.2585. See also Speer v. Presbyterian Children’s Home & Service Agency , 847 S.W.2d 227, 228 (Tex. 1993) (Texas Commission on Human Rights Act (now Texas Labor Code chapter 21) specifically allows for compensatory relief). Equitable relief. In addition to actual and exemplary damages allowed under Tex. Lab. Code §21.2585 and attorney’s fees under Tex. Lab. Code §21.259, on a finding that an employer has engaged in unlawful employment practices, the trial court may order an injunction or additional equitable relief under Tex. Lab. Code §21.258. See also Caballero v. Central Power & Light Co. , 858 S.W.2d 359, 361 (Tex. 1993) (equitable relief under TCHRA (now Texas Labor Code chapter 21) is to be deter mined by judge). Attorney’s fees. See PJC 115.60. Front pay. “Front pay is an equitable remedy intended to compensate a plaintiff for future lost wages and benefits.” Texas Youth Commission v. Koustoubardis , 378 S.W.3d 497, 502 (Tex. App.—Dallas 2012, pet. dism’d). Because front pay is an equi table remedy and not an element of compensatory damages, the U.S. Supreme Court has determined that “front pay” is not a future pecuniary loss subject to the statutory cap on damages under 42 U.S.C. § 1981a, the federal counterpart to Texas Labor Code section 21.2585. Pollard v. E.I. du Pont de Nemours & Co. , 532 U.S. 843, 846–48 (2001). To recover front pay, the plaintiff must show that reinstatement is not feasible. Wal Mart Stores, Inc. v. Davis , 979 S.W.2d 30, 45 (Tex. App.—Austin 1998, pet. denied). The trial court must decide whether it is equitable for the plaintiff to recover front pay and may submit a question to the jury to determine the amount. Dell, Inc. v. Wise , 424 S.W.3d 100, 116–17 (Tex. App.—Eastland 2013, no pet.); Davis , 979 S.W.2d at 45. If the trial court decides to submit front pay to the jury, economic losses in the form of front pay should be excluded from the definition of future compensatory damages. Failure to mitigate defense. The availability of back pay and front pay may be affected by the affirmative defense that the plaintiff failed to mitigate a loss of wages. River Oaks L-M. Inc. v. Vinton-Duarte , 469 S.W.3d 213, 235 n.12 (Tex. App.—Hous ton [14th Dist.] 2015, no pet.) (TCHRA discrimination case in which the court held that “[t]o the extent that West Point’s complaint encompasses any failure by Vinton– Duarte to mitigate lost future earnings, such a claim is a defensive issue on which West Point bore the burden of proof”); Basic Capital Management, Inc. v. Phan , No. 05-00-00147-CV, 2001 WL 893986, at *7 (Tex. App.—Dallas Aug. 9, 2001, pet. denied) (TCHRA retaliation case in which the court held that “[o]nce a plaintiff has shown he is entitled to an award for back pay, the defendant has the burden to show

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