The opinion of the court was delivered by: Munson, Senior District Judge.
MEMORANDUM-DECISION and ORDER
This matter was reassigned to the undersigned following the
Hon. Rosemary S. Pooler's 1998 appointment to the United States
Court of Appeals for the Second Circuit. On September 30, 1998,
following a roughly two week trial before this court, the
presiding jury returned a mixed verdict finding plaintiff's
employer breached his contract, but had not terminated him
because of his age. The verdict led to several post-trial
motions, which currently are before the court. Plaintiff's
motions ask the court: (1) to set aside the jury's verdict with
respect to their finding no liability on his state and federal
age discrimination claims; (2) to amend judgment to include
prejudgment interest on the damages awarded on his breach of
contract claim; and (3) to award plaintiff costs of the action,
including reasonable attorney's fees. Defendants oppose
plaintiff's motions and cross-move for judgment as a matter of
law on plaintiff's breach of contract claim. After careful
consideration, the court denies plaintiff's motion to set aside
the verdict; denies defendant's motion for judgment as a matter
of law; denies plaintiff's motion to award him costs and
attorney's fees; and grants plaintiff's motion for prejudgment
The facts of this matter are set forth in Judge Pooler's July
17, 1997 decision and only those germane to the instant motions
will be repeated here. See Donovan v. Eastern Milk Producers
Co-op. Ass'n. Inc., 971 F. Supp. 674 (N.D.N.Y. 1997).*fn1
Plaintiff, the erstwhile General Manager at Eastern, claimed
defendants breached his employment contract and discharged him
from in violation of the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. § 621 et seq., and New York Human Rights
Law ("NYHRL"), N.Y.Exec.Law §§ 290 et seq. After hearing
argument and considering the evidence presented at trial, the
jury delivered a verdict of $40,000 that found merit to the
breach of contract claim only. Although the jury found plaintiff
proved his age was a motivating factor in Eastern's decision to
fire him, it further found the company would have released him
regardless of his age.
I. Plaintiff's Motion to Vacate the Age Discrimination Verdict
Plaintiff submits defendants' failure to raise mixed-motive as
an affirmative defense in their pleadings should have precluded
the court from giving a mixed-motive instruction to the jury at
the conclusion of trial. As the instruction never should have
been given, plaintiff adds, the court must vacate the verdict
against his age discrimination claims and grant him a new trial
pursuant to Rule 59(a) of the Federal Rules of Civil Procedure.
Defendants respond that they raised a mixed-motive defense in
their answer to the amended complaint. They cite the language of
their first affirmative defense, which reads: "Defendants'
employment decisions with respect to the Plaintiff were based
upon legitimate, non-discriminatory reasons." Dfts' Answer to
Amend. Compl. at ¶ 36. Plaintiff counters that this language,
while sufficient to raise a "pretext" defense, is insufficient to
plead a mixed-motive defense.
Employment discrimination claims generally fall into two
categories: mixed-motive cases and pretext cases. See Tyler v.
Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir. 1992).
Mixed-motive is an affirmative defense available to employers in
employment discrimination cases. The defense, which must be
raised in a defendant's pleadings, is available if there is
credible evidence of both permissible and impermissible factors
influencing a challenged adverse employment action. See
Ostrowski v. Atlantic Mut. Ins. Companies, 968 F.2d 171, 180-81
(2d Cir. 1992). In such a case, should a plaintiff prove that an
impermissible factor — despite the presence of permissible
factors — had a "motivating" role in an adverse employment
decision, then the burden of persuasion shifts to the employer to
prove as an affirmative defense that it would have made the same
decision even in the absence of the discriminatory factor. See
Cabrera v. Jakabovitz, 24 F.3d 372, 382-83 (2d Cir. 1994).
By contrast, in a pretext case, a plaintiff argues that a
protected status engendered an adverse employment decision and
that a defendant's ostensibly legitimate reasons for the
questioned action was pretextual. The burden of persuasion never
shifts in a pretext case. Should a plaintiff establish a prima
facie case of impermissible discrimination, a defendant does not
bear the burden of proving that plaintiff's protected status —
e.g., age, gender or race — was not a factor in its decision.
Rather, once the employer articulates a legitimate reason for its
decision, the ultimate burden of proving that the challenged
employment decision was the result of intentional discrimination
remains with the plaintiff. See Luciano v. Olsten Corp.,
110 F.3d 210, 218 (2d Cir. 1997).
Citing United States v. Continental Ill. Nat'l Bank and Trust
Co., 889 F.2d 1248, 1255 (2d Cir. 1989), defendants note that
one of the main reasons for the Rule
8' of the Federal Rules of Civil Procedure, which governs
affirmative defenses, is to avoid surprise to the plaintiff.
Given the history of this litigation, defendants continue,
plaintiff cannot claim unfair surprise or prejudice from the
mixed-motive instruction. For example, in Judge Pooler's previous
decision she informed the parties: "Because I find that
[plaintiff] survives summary judgment under the McDonnell
Douglas-Burdine framework, I decline the parties' invitation to
engage in a Price Waterhouse mixed-motive analysis." Donovan,
971 F. Supp. at 677, n. 2. Defendants contend that this reference
to a mixed-motive analysis, in addition to others occurring at
various stages during this litigation, in conjunction with the
language of their first affirmative defense, put plaintiff on
notice that defendants would present a mixed-motive defense. The
court agrees, finds plaintiff's "pretext" argument unpersuasive,
and denies his motion to vacate the age discrimination verdict.
II. Defendants' Motion Judgment as a Matter of Law on the Breach
of Contract Claim
At the close of trial, defendants moved pursuant to Rule 50 of
the Federal Rules of Civil Procedure for judgment as a matter of
law on plaintiff's breach of contract claim. The court reserved
decision on defendants' motion. Following the verdict, defendants
renewed their motion.
Essentially, defendants argue that plaintiff's employment
contract with Eastern expressly provided that "[i]f the GM for
any reasonis not in the employ of the cooperative as of the end
of the fiscal year[,] he shall be excluded from distribution
under this plan for such fiscal year unless otherwise permitted
by the board." Dfts' Not. of Mot. at Ex. F. Defendants reason
that as Eastern did not employ plaintiff through March 31, ...