NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 3, 2009
KELVIN D. ANDERSON, PLAINTIFF-APPELLANT,
YOUNG & RUBICAM, DEFENDANT-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.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Tom, Andrias, Nardelli, Richter, JJ.
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 , lv denied 11 NY3d 701 ). 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 Fin. Servs., Inc., _US_, 129 S Ct 2343, 2350-2351 ; Ioele v Alden Press, 145 AD2d 29, 36-37 ). Giving the McDonnell Douglas Corp. v Green (411 US 792 ) burden-shifting instruction is not alone a ground for reversal (see Vincini v American Bldg. Maintenance Co., 41 Fed Appx 512, 515 ). The requested mixed motive charge was unwarranted (see Gross v FBL Fin. Servs., supra).
We have considered plaintiff's other contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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