Anderson v Young & Rubicam

Anderson v Young & Rubicam 2009 NY Slip Op 08956 [68 AD3d 430] December 3, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Kelvin D. Anderson, Appellant,
v
Young & Rubicam, Respondent.

—[*1] Noah A. Kinigstein, New York, for appellant.

Davis & Gilbert LLP, New York (Maureen McLoughlin of counsel), for respondent.

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 AD3d 440 [2007], lv denied 11 NY3d 701 [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 Financial Services, Inc., 557 US —, —, 129 S Ct 2343, 2350-2351 [2009]; Ioele v Alden Press, 145 AD2d 29, 36-37 [1989]). Giving the McDonnell Douglas Corp. v Green (411 US 792 [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 Financial Services, Inc., supra). [*2]

We have considered plaintiff's other contentions and find them unavailing. Concur—Gonzalez, P.J., Tom, Andrias, Nardelli and Richter, JJ.