Unpublished Disposition, 928 F.2d 408 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 408 (9th Cir. 1991)

Otis J. GRAHAM, Plaintiff-Appellee,v.DRESSER INDUSTRIES, INC., d/b/a Wabco Haulpak Division, aDelaware Corporation, Defendant-Appellant.

No. 90-35333.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1991.Decided March 13, 1991.

Appeal from the United States District Court for the District of Oregon, No. CV-88-1485-DA; William M. Dale, Jr., Magistrate, Presiding.

D. Or.

AFFIRMED.

Before JAMES R. BROWNING, CANBY and TROTT, Circuit Judges.


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.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Even if we construe Dresser's argument as contesting the sufficiency of the evidence, the claim is meritless. This court will not disturb a jury verdict if "such relevant evidence [exists] as a reasonable mind might accept as adequate to support a conclusion." Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 208 (9th Cir. 1989). Graham presented evidence that Dresser had asked him to move his property to a Dresser storage area in the Singapore office; that Dresser's agents were aware of the presence of his property; that Dresser's agents cleaned out the storage area where Graham's property was located; that they destroyed the property found in the storage area; and that Graham's property disappeared. Based on these facts, a reasonable jury could find that Dresser's employees had been negligent