PJC Business

E MPLOYMENT

PJC 107.18

PJC 107.18 Question Limiting Relief in Unlawful Employment Practices

If you answered “Yes” to Question ______ [ 107.6 ], then answer the follow ing question. Otherwise, do not answer the following question.

QUESTION ______

Would Don Davis have taken the same action inquired about in Question ______ [ 107.6 ] when he did, in the absence of the impermissible motivating factor? Answer “Yes” or “No.” Answer: _______________

COMMENT

When to use. PJC 107.18 should be used if an employer claims that its employ ment decision would have been made in the absence of an impermissible motive. Tex. Lab. Code § 21.125(b); see also Quantum Chemical Corp. v. Toennies , 47 S.W.3d 473, 475–76 (Tex. 2001). In such a mixed-motive case, a plaintiff may be entitled to declar atory or injunctive relief, attorney’s fees, and costs, although not entitled to back pay or reinstatement. Tex. Lab. Code §21.125(b); see also 42 U.S.C. §2000e–5(g)(2)(B). But see Peterson v. Bell Helicopter Textron, Inc. , 806 F.3d 335, 342–43 (5th. Cir. 2015) (in reading Tex. Lab. Code § 21.125(b) and § 21.259 together, if no declaratory or injunctive relief is awarded, then the plaintiff is not a prevailing party and no attor ney’s fees can be awarded). PJC 107.18 should not be submitted to the jury based on after-acquired evidence. See McKennon v. Nashville Banner Publishing Co. , 513 U.S. 352 (1995). Source of question. PJC 107.18 is derived from Tex. Lab. Code § 21.125(b). Broad-form submission. PJC 107.18 is a broad-form question designed to be accompanied by one or more appropriate instructions. Tex. R. Civ. P. 277 requires that “the court shall, whenever feasible, submit the cause upon broad-form questions.” Tex. R. Civ. P. 277; see Thota v. Young , 366 S.W.3d 678, 689 (Tex. 2012) (rule 277’s use of “whenever feasible” mandates broad-form submission in any or every instance in which it is capable of being accomplished).

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