Unpublished Disposition, 928 F.2d 408 (9th Cir. 1991)

MEMORANDUM^* 

Dresser Industries, Inc. ("Dresser") appeals a jury award to Otis Graham of $245,000 on his claim that Dresser violated the Age Discrimination in Employment Act (ADEA) and of $2,500 on his claim for negligent loss of personal property. We affirm.

Dresser contends the jury instructions on the ADEA claim did not state the correct standard. A jury verdict will not be reversed if jury instructions "fairly and adequately cover the issues" presented and "as a whole" are neither misleading nor incorrectly state the law. Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1344 (9th Cir. 1987). " [T]he judge's formulation of [ ...] instructions or choice of language is a matter of discretion." United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985).

To constitute an ADEA violation, age need not be the sole factor in the decision to terminate the plaintiff's employment, but must be "a determining factor" or "make a difference". Cassino, 817 F.2d at 1343-44; Cancellier v. Federated Dept. Stores, 672 F.2d 1312, 1316 (9th Cir. 1982); Kelly v. American Standard, Inc., 640 F.2d 974, 984-85 (9th Cir. 1981).

Jury instruction 13, as originally given, read:

To establish age discrimination, plaintiff must prove by a preponderance of the evidence that defendant would have kept him on the job but for his age. Plaintiff need not show that age was the only factor defendant acted on but he must prove that age was a determining factor that caused the company to discharge him ... [T]he only question you are to consider is whether plaintiff's age motivated defendant to discharge him.

The jury requested clarification. The court then told the jury that " [a]ge need not be the sole factor in the discharge" but that "age must have made a difference in the employer's determination whether or not to retain or discharge the employee."

Appellant claims the supplemental instruction may have led the jury to believe that age may be less than a "but for" cause of termination, contrary to the Ninth Circuit standard. The court, however, explicitly instructed the jury that the previous instructions were still to be considered along with the clarification, and that the terms "but for" and "a determining factor" were not to be construed as contradictory. Taken together, the two instructions correctly state the Ninth Circuit standard, and were not misleading.

Dresser argues the claim for negligent loss of property should not have been submitted to the jury. Dresser raised the issue in a motion to dismiss, and later in a motion for directed verdict. The district court denied both motions. Dresser did not renew the motion as one for a judgment notwithstanding the verdict. "An appeal does not lie from a denial of a motion for directed verdict." Locricchio v. Legal Services Corp., 833 F.2d 1352, 1356 n. 2 (9th Cir. 1987); see also Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947). Since Dresser did not move for a JNOV, there is nothing to review.¹ 

The judgment is AFFIRMED. Graham's request for damages and attorneys' fees is DENIED.