PJC Business 2024

D AMAGES

PJC 115.30

the plaintiff failed to mitigate that loss before it will be entitled to an offset”); Gorges Foodservice, Inc. v. Huerta , 964 S.W.2d 656, 669 (Tex. App.—Corpus Christi–Edin burg 1997, pet. withdrawn) (TCHRA disability discrimination and workers’ compen sation retaliation case in which the court held that “[a] wrongfully discharged employee has a duty to mitigate damages by making a good faith effort to obtain and retain employment. Mitigation is a defensive issue upon which [defendant] bore the burden of proof at trial”) (internal citations omitted). The elements to be proven by the defendant are that (1) substantially equivalent employment was available to the plaintiff and (2) the plaintiff failed to be reasonably diligent in seeking such employment. Sparks v. Griffin , 460 F.2d 433, 443 (5th Cir. 1972). (There is some authority for requiring the defendant to prove only the second element. Sellers v. Delgado College , 902 F.2d 1189, 1193 (5th Cir. 1990).) See also Hoffmann-La Roche, Inc. v. Zeltwanger , 144 S.W.3d 438, 446 (Tex. 2004) (“The [T]CHRA ‘is modeled after federal law with the purpose of executing the policies set forth in Title VII,’” so “federal case law may be cited as authority in cases relating to the [TCHRA].”) (quoting Green v. Industrial Specialty Contractors, Inc. , 1 S.W.3d 126, 131 (Tex. App.—Houston [1st Dist.] 1999, no pet.)). Because of the general goal of harmonizing the application of federal and state antidiscrimination laws, the some what different mitigation defense to a claim for damages for breach of an employment contract (see PJC 115.25) should be avoided in the context of a chapter 21 claim. After-acquired evidence of employee misconduct. If the employer has pleaded the discovery of evidence of employee misconduct acquired only after the employee’s employment was terminated, see PJC 107.8 for the applicable instruction. Elements of damages submitted separately. The Committee generally recom mends that multiple elements of damages be separately submitted to the jury. Harris County v. Smith , 96 S.W.3d 230, 233–34 (Tex. 2002) (broad-form submission of valid and invalid elements of damages may lead to harmful error if there is a proper objec tion raising insufficiency of the evidence to support one or more of the elements sub mitted); see also Tex. Civ. Prac. & Rem. Code §41.008(a) (“In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages.”). Separating economic from noneconomic damages is required to allow the court to apply the limits on recovery of exemplary damages based on economic and noneco nomic damages as required by Tex. Civ. Prac. & Rem. Code § 41.008(b). Further, “[p]rejudgment interest may not be assessed or recovered on an award of future damages.” Tex. Fin. Code § 304.1045 (wrongful death, personal injury, or prop erty damage cases). Therefore, separation of past and future damages is required. Elements considered separately. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 770 (Tex. 2003), provides an instruction for cases involving undefined or

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