Defendants never pled mixed-motive as an affirmative defense,
plaintiff argues, therefore they were not entitled to such a jury
charge. Defendants counter that as their answer sets forth the
disputed affirmative defense, plaintiff's motion to vacate should
be denied. Plaintiff also requests prejudgement interest on his
award for breach of contract. Defendants do not exactly dispute
that prejudgment interest should be awarded, but do claim that
the evidence adduced at trial demonstrates they are entitled to
judgment as a matter of law on plaintiff's breach of contract
claim. Finally, plaintiff asks the court for attorney's fees and
costs because he proved that defendants' decision to terminate
him was motivated in part by his age. Defendants oppose this
motion, arguing plaintiff did not prevail on his age
discrimination claims and also that attorney's fees cannot be
awarded in mixed-motive ADEA cases. The court examines these
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, 1995 —
the fiscal period for which the jury awarded him his bonus — he
was not entitled to any bonus.
Plaintiff posits two reasons for why defendants' instant
reasoning is erroneous: first, he notes that although he had been
"relieved of his responsibilities" on October 18, 1994, he
remained employed with Eastern through March 31, 1995; and
second, he argues that his contract called for his employment as
General Manager with Eastern through March 31, 1995. Had he
remained in that position, he would have been eligible for a year
end, discretionary bonus. The $40,000 verdict is reasonable,
plaintiff continues, because his incentive bonuses in previous
years had been a comparable amount to the verdict.*fn2 Finally,
he reminds the court that Judge Pooler previously held that a
"reasonable jury" could find that defendants' actions deprived
him of his ability to earn the disputed incentive bonus. The
court finds plaintiff's reasoning persuasive and denies
defendants' motion for a directed verdict.
III. Prejudgment Interest
Plaintiff seeks an amendment of judgment to be entered pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure to allow
prejudgment interest on his breach of contract award. He is
entitled to such interest. Under New York law, "prejudgment
interest is normally recoverable as a matter of right in an
action at law for breach of contract." Adams v. Lindblad Travel,
Inc., 730 F.2d 89, 93 (2d Cir. 1984); see N.Y.C.P.L.R. § 5001
(McKinney 1992). The statutory rate for an award of prejudgment
interest in breach of contract cases is nine percent. See
N YC.P.L.R. §§ 5001 and 5004 (McKinney 1992). Prejudgment
interest is calculated on a simple interest basis from the
earliest ascertainable date on which its cause of action existed.
See id.; Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83 (2d Cir.
1998); Farrell v. Comstock Group, Inc.,
211 A.D.2d 493, 621 N.Y.S.2d 325, 326 (1st Dep't 1995).
Accordingly, as defendants do not dispute the date, the court
calculates prejudgment interest as accruing from March 31, 1995
to September 30, 1998. Plaintiff's motion is granted to the sum
of $12,614.80 in prejudgment interest.*fn3
IV. Attorney's Fees
Although plaintiff did not prevail on his age discrimination
claim, he notes that the jury found age was a motivating factor
in Eastern's decision to fire him. He asks for reasonable
attorney's fees and costs pursuant to 29 U.S.C. § 216(b) and
626(b), and Rule 54(d) of the Federal Rules of Civil Procedure.
Not surprisingly, defendants oppose any such award.
The ADEA incorporates the attorney's fee provisions of the Fair
Labor Standards Act, which provide that "[t]he court . . . shall,
in addition to any judgment awarded to the plaintiff or
plaintiffs . . . allow a reasonable attorneys' fee to be paid by
the defendant, and costs of the action." 29 U.S.C. § 216(b)
(incorporated by reference in 29 U.S.C. § 626(b)). In sum, in
what appears to be a matter of first impression, plaintiff
submits that as he demonstrated that his age was a motivating
factor in Eastern's decision to fire him, the public interest and
policy considerations underlying the ADEA mandate that the costs
of this litigation, including his attorney's fees, be paid by
He reasons as follows. The ADEA and Title VII are premised upon
the same fundamental principle: a discrimination free workplace.
Both acts rely upon private citizens to enforce the statutes'
guarantees, therefore the acts allow for attorney's fees for
successful plaintiffs. Without the availability of attorney's
fees, many citizens would be discouraged from vindicating their
rights under either act.
Under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct.
1775, 104 L.Ed.2d 268 (1989), a plaintiff who could prove
discrimination was a motivating factor in an adverse employment
action could not establish a Title VII violation if the employer
demonstrated it would have taken the same action regardless of
the impermissible motivating factor. Congress, however, partially
overruled Price Waterhouse in the Civil Rights Act of 1991 by
allowing a finding of liability and limited relief to plaintiffs
in mixed-motive cases. See Landgraf v. USI Film Prods.,
511 U.S. 244, 249, 114 S.Ct. 1483, 1489, 128 L.Ed.2d 229 (1994).
Section 107(a) of that Act, codified at 42 U.S.C. § 2000e-2(m),
holds that an employment practice is unlawful if there are
legitimate and illegitimate motivations for it. Section 107(b) of
the Act, codified at 42 U.S.C. § 2000e-5(g)(2)(B), states that if
a plaintiff proves a violation of section 107(a), but the
defendant demonstrates that it "would have taken the same action
in the absence of the impermissible motivating factor," id.,
the court may grant declaratory and injunctive relief as well as
attorney's fees.*fn4 Price Waterhouse held there was no
liability in mixed-motive cases, meaning an award of attorney's
fees under such circumstances was not possible; the Civil Rights
Act of 1991 permits a plaintiff in a mixed motive to recover
these fees. Although the ADEA contains no statutory provision
allowing recovery of attorney's fees in mixed-motive cases,
plaintiff reasons that given the similar aims of that statute and
Title VII, any other result would be incongruous.
Defendants disagree. They counter that whether a party is
awarded attorney's fees under § 216(b) depends entirely upon
whether a party is the prevailing party.
See, e.g., Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913
(2d Cir. 1997) ("prevailing party" in action brought under the
ADEA entitled to recover attorney's fees). Plaintiff, they argue,
is not a prevailing party under any traditional meaning and
therefore is not entitled to attorney's fees. As to plaintiff's
public policy argument, defendants cite Sanderson v. City of New
York, No. 96-Civ-3368, 1998 WL 187834, *3, n. 2 (S.D.N Y
Apr.21, 1998) for the proposition that attorney's fees are not
available in a mixed-motive case:
Under Title VII, an employer may still be liable for
certain costs if the jury finds that an impermissible
factor was a motivating factor but also finds that
defendant has proved the affirmative defense. See
42 U.S.C. § 2000e-5(g)(2)(B). The ADEA does not
provide for an award of costs or damages in that
Defendants counter that had Congress intended for ADEA plaintiffs
to recover attorney's fees in mixed motive cases, it would have
amended that statute as well.
The ADEA and Title VII share a common goal of ending
discrimination in the workplace. Given this laudable aim, it does
appear incongruous to allow Title VII plaintiffs to recover
attorney's fees in mixed-motive cases, but not allow ADEA
plaintiffs recovery under similar circumstances. Nonetheless, the
court finds defendants' reasoning more persuasive: if there is to
be an opportunity to award attorney's fees in mixed-motive ADEA
cases, it requires statutory fiat. In other words, even if
recovery of attorney's fees in mixed-motive ADEA cases seems
reasonable, this court cannot create such a precedent when what
truly is required is congressional action. Plaintiff's motion for
attorney's fees and costs must be denied.
Wherefore, based upon the foregoing, the court DENIES
plaintiff's motion to set aside the verdict with respect to his
age discrimination claims; DENIES defendants' 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 on his $40,000 breach of contract award
to the sum of $12,614.80.
IT IS SO ORDERED.