ANDERSON v. YOUNG RUBICAM (2009)

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered September 29, 2008, which, after a jury trial, denied plaintiff's motion for judgment notwithstanding the verdict or a new trial, unanimously affirmed, without costs.

The verdict that plaintiff failed to prove a prima facie case of age discrimination and that the reasons defendant gave for his termination were not pretextual was based on a fair interpretation of the evidence (see Jordan v. Bates Adv. Holdings, Inc., 46 A.D.3d 440, 848 N.Y.S.2d 127 [2007], lv. denied 11 N.Y.3d 701, 864 N.Y.S.2d 388, 894 N.E.2d 652 [2008] ).   The jury's determination, based largely on credibility, is amply supported by the evidence, including plaintiff's retraction of his allegation about his supervisors' remarks, his “correction” of a deposition errata sheet to insert the word “older” in his recitation of one of those remarks, his admission that he had been given a negative job performance evaluation, unanimous testimony from defendant's personnel as to both defendant's need to cut costs and plaintiff's professional shortcomings, undisputed testimony that plaintiff was hired, promoted and given a raise after the age of 50, evidence that a substantially older employee was not terminated, and undisputed evidence that two younger persons hired after plaintiff's termination as regular employees were paid at a combined lower salary than that of plaintiff.

As to the jury charge, contrary to plaintiff's contention, there is no meaningful distinction between a “determining” factor, as given in the pattern instruction, and a “determinative” factor, as the trial court charged.  “Except for” and “but for,” both used by the court in defining “determinative,” are synonymous;  plaintiff himself requested the use of “except for” language, and case law endorses the “but for” language (see Gross v. FBL Fin. Servs., Inc., --- U.S. ----, 129 S.Ct. 2343, 2350-2351, 174 L.Ed.2d 119 [2009];  Ioele v. Alden Press, 145 A.D.2d 29, 36-37, 536 N.Y.S.2d 1000 [1989] ).   Giving the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 [1973] burden-shifting instruction is not alone a ground for reversal (see Vincini v. American Bldg. Maintenance Co., 41 Fed.Appx. 512, 515 [2002] ).   The requested mixed motive charge was unwarranted (see Gross v. FBL Fin. Servs., supra ).

We have considered plaintiff's other contentions and find them unavailing.