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June 18, 1999


The opinion of the court was delivered by: Munson, Senior District Judge.


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 interest.


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).

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 reason[]is 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, ...

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