Opinion
34349/2005
09-04-2019
Hovsep GREGORIAN, Plaintiff, v. NEW YORK LIFE INSURANCE COMPANY, Defendants.
Steven Soulios, Esq. from Ruta Soulios & Stratis LLP, Attorneys for the Plaintiff Elise Bloom, Esq. from Proskauer Rose LLP, Attorneys for the Defendant
Steven Soulios, Esq. from Ruta Soulios & Stratis LLP, Attorneys for the Plaintiff
Elise Bloom, Esq. from Proskauer Rose LLP, Attorneys for the Defendant
Kathy J. King, J.
The following papers numbered 1 to 4 read herein :
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavit (Affirmations) Annexed 1-2
Opposing Affidavit (Affirmations) 3
Reply Affidavit (Affirmation) 4
Upon the foregoing papers, defendant, New York Life Insurance Company ( "NY Life") moves for an order pursuant to CPLR 3212 granting summary judgment to dismiss the complaint of plaintiff Hovsep Gregorian ( "Gregorian") in its entirety with prejudice. Plaintiff opposes the motion.
BACKGROUND
Defendant NY Life is a nationwide mutual life-insurance company with headquarters in New York. The company maintains about 120 General Offices throughout the United States that sell life insurance and annuity products. The General Offices are part of designated sales region or zones throughout the United States, i.e., Northeastern, West Central, South Central and Pacific. As an independent business unit, each zone has its own management team and staff personnel. Each Zone is managed by a senior vice president ("Zone SVP"), who is responsible for the overall production and operation of the zone, together with managing and supervising the Managing Partner ("MP") in the zone. The Zone SVP is responsible for training, developing, disciplining and discharging his/her managing partners. In conjunction with this responsibility, the Zone SVP also completes managing partner performance evaluations, develops and implements development/action plans, and fills vacant managing partner positions in accordance with NY Life's promotability index and makes discipline/termination decisions. The zones report to the Agency Department, which is the highest level of NY Life's internal hierarchy, and is responsible for NY Life's life insurance sales, operations, and distribution system. There is an Agency Department SVP who on or about 2004, reported to Phil Hilderbrand the executive president/vice chairman of NY Life.
Gregorian started his career as a sales agent at NY Life in 1985 and quickly rose through the ranks in 1991 to become an MP at the Vermont General Office. He was transferred to the Bay Ridge General Office in Brooklyn, New York, where he served in the same position. The Bay Ridge General Office later merged with the Flatbush General Office to become the Brooklyn General Office (Brooklyn GO). Gregorian was appointed Managing Partner of the Brooklyn GO around November 1999 where he worked until his termination in February 2005. At the time of his termination, he was 51 years old. During his tenure as Managing Partner, Gregorian reported to Northeast Zone SVPs Salvatore Farina ( "Farina"), from 1999 to December 2001, Jonathan Jaramillo ("Jaramillo"), from January 2002 to 2004 and Mark Pfaff ("Pfaff"), from 2004 through February 23, 2005.
Section III of NY Life's Partner and Evaluation and Supervision Manual ( "Manual") sets forth the responsibilities of a general office MP as follows:
• Leading the office and agents toward the attainment of agreed upon objectives.
• Supervising all Agents/Registered Representatives assigned to the General Office as specified in the Field Supervision Manual, the GOLD System and other related Company policy and procedure manuals. • Adhering to all regulatory and Company standards and procedures.
• Recruiting New Agents.
• Training and Developing Agents.
• Achieving satisfactory retention levels.
• Nurturing established goals.
• Increasing sales productivity.
• Identifying, selecting and training second-line management.
• Developing a Partnership Team and building a team spirit in the office.
The Manual (Section F) also sets forth the criteria for NY Life to review MP performance as follows:
"The MP (subject to review and concurrence by the Zone) will complete a MP's job performance review once every six months (as of the end of December and the end of June) using the General Office Grade Point Average (GPA) Formula [and] the MP Performance Evaluation Program [Form]".
The GPA measures a general office's annual results against company standards in seven separate categories:
• Actual results vs. annual plan
• New organization first year commissions (FYC) growth
• Life production growth
• Paid life case growth
• Manpower growth
• Average appointments per recruiter
• Retention categories
A MP is expected to maintain an overall GPA of at least 1.5. The Manual notes that the GPA is one of several measures used for MP evaluations, i.e., "In addition to the GPA, which will be sent separately from the Home Office, the MP performance Evaluation will assess certain Competencies in the GOLD System, Basic Management and Leadership Supervision and Diversity".
The GOLD system includes certain competencies to be assessed by management and is considered to be defendant's "primary management, development and agent development tool," by which success of an office is determined (see , Salvatore F. Farina's 11/2/2007 EBT) The Manual sets forth basic competencies which are used in the MP Performance Evaluation which include Organization Building and Leadership; Judgment; Planning; Professional Practices and Ethics; and Technical Product Knowledge.
While the GPA, in conjunction, with the GOLD system are the primary measures of MP performance, the Manual further emphasizes the following:
"While the [evaluation] system places substantial emphasis on the objectives, which can be quantified, this does not minimize the qualitative aspect of General Office supervision. In considering a Managing Partner's overall effectiveness, significant weight must be given to supervision. A Managing Partner's performance may be deemed unacceptable even where the Grade Point Average is above the expected level".
Emphasis, as indicated, pursuant to the Manual.
NY Life's evaluation system includes various cautionary directives that can be given to managing partners: performance alert, written performance warning, final notice and termination. Specifically, the Manual provides that a written Performance Improvement Program should be established in all situations where the GPA is less than 1.5. It must be established for any situation where the Overall Rating is Unacceptable, or where the MP's performance has indicated a downward trend (even if the GPA is above 1.5).
In his deposition testimony, Gregorian acknowledges that he was responsible for the overall operations of the Brooklyn General Office, which included recruiting and developing new sales agents to be productive, "growing the office and growing the business of the office," "developing the veteran agents to higher productivity levels," and implementing NY Life's General Office Leadership Development system. ("GOLD"). (see , Gregorian's November 16, 2007 EBT-Defendant's Exhibit I)
According to Gregorian, in 15 years as MP, his GPA never fell below 1.5, and he was coming off one of his best years in 2001, having achieved a 3.29 GPA. He indicates that he is the only MP to be terminated for not maintaining a 2.5 GPA., which defendant does not dispute (see Hilderbrand, Morris, and Pfaff EBTs). As a result, he maintains that NY Life terminated his employment not because of his performance, rather to prevent him from becoming vested for pension benefits at age 55. Gregorian also points to defendant's failure to follow its policy for discipline and termination set forth in the Manual, by issuing a Final Warning as an initial disciplinary step, instead of the "Performance Alert" and "Performance Warning" disciplinary steps. Plaintiff also alleges systemic and institutionalized discriminatory practices evidenced by disparate treatment of older employees vs. younger employees throughout the country and statements by senior management.
At the same time, the record establishes that NY Life identified deficiencies in Gregorian's performance both before and after his appointment to the Brooklyn GO. In July1997, Farina advised Gregorian that he had a poor sales agent retention rate, and later in the year was provided written notice of additional deficiencies. In 1998, Gregorian, was advised by Walter Brady, Farina's predecessor, in writing, that six out of seven components of the Brooklyn GO's GPA were below average for the Northeast Zone. Despite his deficiencies, Farina admittedly appointed Gregorian to the newly created MP position in the recently merged Flatbush and Bay Ridge offices because Gregorian "was [his] friend" and he wanted to "help him out".
In 1997, Farina was Northeastern Zone Vice President. Farina became Northeastern Zone SVP in 1999.
Internal audits conducted from Gregorian's initial appointment as MP of the Brooklyn GO through 2001 revealed continued performance deficiencies. In 2002, Jaramillo became the Northeastern Zone SVP, replacing Farina. After a site visit at the Brooklyn GO, Jaramillo issued Gregorian a written performance alert and placed him on a performance action plan which were incorporated into a letter dated July 9, 2002. Two months later, by letter dated September 23, 2002, Gregorian was issued a "Severe Reprimand" due to adversarial and unprofessional conduct towards Jaramillo and the Zone. The Reprimand stated that the Zone would not tolerate Gregorian's "adversarial and unprofessional" conduct and advised Gregorian that any subsequent incidents "will leave no choice but to pursue further disciplinary action, including the termination of employment with the company". Gregorian admits that he was frustrated with the individuals identified in the Reprimand, and admits due to his high blood pressure, he may not have spoken to those individuals in "a perfectly normal tone". Notwithstanding the performance alert, Gregorian's performance failed to improve, and by letter dated November 15, 2002, Jaramillo stated the reasons why Gregorian did not comply with the performance action plan and advised Gregorian that he was on "Final Warning". The letter further stated, "I must emphasize that should you fail to meet these directives or perform all your responsibilities as MP in a [un]satisfactory manner I will have to recommend the termination of your MP's contract at year-end". According to NY Life, based on Gregorian's failure to improve his performance, the Brooklyn GO's growth and production numbers were flat; total FYC in 2002 was $2.7 million and in 2003 was $2.6 million. Additionally, during this period the office continued to have personnel and management issues. As a result, on April 8, 2003, Jaramillo issued another Final Warning to Gregorian, stating that his performance under the action plan previously outlined by Jaramillo in 2002, was unacceptable, and emphasized the need for Gregorian to "significantly improve [his] performance, especially [his] leadership skills. The letter concluded "[s]ince you have been on Final Notice since November 18, 2002, I must see improvement immediately or I will have no alternative but to remove you as MP and terminate your contract".
In April 2004, Pfaff replaced Jaramillo as Northeast Zone SVP. He visited the Brooklyn GO, along with Pat Geyer, Zone Chief of Operations, to meet with Gregorian regarding the status of the Brooklyn GO. By letter dated May 19, 2004, Pfaff memorialized the results of the meeting to Gregorian. Pfaff expressed his concern to Gregorian about his performance, which he described as "significant, observable and definable". Pfaff confirmed that Gregorian was presently on final notice and would remain on that status based on deficiencies in leadership, involvement, and control. Pfaff provided Gregorian with a roadmap of 5 items to be achieved by June 30th and indicated that he was looking forward to the results in the second quarter. By letter dated July 30, 2004 which included Gregorian's mid-year Performance Summary, Pfaff advised Gregorian that he is reevaluating his performance for the first half of the year. Pfaff indicated that while the Brooklyn GO achieved a 2.11 GPA, Gregorian had not achieved the goals set forth in Pfaff's May 19, 2004 letter. Pfaff, acknowledging that Gregorian, had health challenges during the first quarter, extended Gregorian's final notice status to September 30th and stated that his continued employment with NY Life was contingent on achieving five stated goals. A third letter dated August 19, 2004, was sent by Pfaff to Gregorian, essentially reiterating performance deficiencies outlined in Pfaff's prior letter. The August 19th letter extended Gregorian's final notice status to October 31. Throughout November 2004, although Gregorian obtained minimum goals, neither the Brooklyn GO's performance or Gregorian's overall performance improved. By letter dated December 2, 2004, Pfaff stated that Gregorian had achieved bare minimum objectives pursuant to the objectives set forth in his previous letters. The letter stated that Northeastern Zone would not tolerate his admitted "bare minimum" conduct or poor leadership any longer and that it could not "continue to keep [him] on Final Notice with no growth". Pfaff, again, set forth a list of objectives to be achieved. Pfaff's December 2nd letter set a December 31st deadline to achieve a list of objectives, one of which was a 2.5 GPA.
At the beginning of 2005, Pfaff reviewed Gregorian's and the Brooklyn GO's performance with Geyer and determined that NY Life could no longer employ Gregorian as MP based on his failure to meet NY Life's guidelines performance objectives. Thereafter, Pfaff advised NY Life's in-house counsel and Morris, the Agency Department SVP, that he had made the decision to terminate Gregorian. On February 23, 2005, Pfaff and Geyer notified Gregorian that he was terminated. Upon termination, Gregorian received a severance payment of $107,515.
After Gregorian's termination, the Brooklyn office MP vacancy was filled by Raj Bakshi, who was 44 years old at the time he accepted the position.
PROCEDURAL HISTORY
In September 2005, Gregorian commenced the within action against NY Life alleging four causes of action challenging his termination.The first and second causes of action pled alleged violations of Labor Law § 740 (the "Whistleblower" Law) and the New York City Human Rights Law ("NYCHRL"), for discharging plaintiff in retaliation for complaining about the working conditions in his office (see NYC Code 8-107 ). In his third and fourth causes of action, Gregorian asserts that he was terminated on the basis of age in violation of New York State Human Rights Law ("NYSHRL") and NYCHRL .
Plaintiff asserts in his complaint that he was discharged by NY Life based on the following: (a) in retaliation for complaining to [it] about the discriminatory and hostile working conditions at the Brooklyn [o]ffice" in violation of Labor Law § 740, and (b) "in retaliation for complaining to [it] about the racially discriminatory, dangerous and unlawful working conditions at the Brooklyn office" in violation of the NYCHRL.
Executive Law § 296(1)(a) provides, in relevant part, that "[i]t shall be an unlawful discriminatory practice [f]or an employer or licensing agency, because of an individual's age, to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment".
With regard to plaintiff's assertion that defendant violated the NYCHRL, the court by order dated October 22, 2010 (J. Schmidt), found that said violation arose from § 8-107 of the Administrative Code (1)(a) which provides, in relevant part, that "[i]t shall be an unlawful discriminatory practice [f]or an employer or an employee or agent thereof, because of the actual or perceived age ..of any person, to refuse to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges.
Gregorian's age-discrimination claims are based on his allegations that: (a) he had 20 years of service with NY Life, was 51 years of age at the time of his discharge, and was terminated due to his age; and (b) he was prematurely and unjustifiably discharged by NY Life since he would have been entitled to an early retirement package valued at $1.334 million at the age of 55, had he remained with NY Life for an additional four years.
Following the filing of the summons and complaint, the parties engaged in four years of protracted discovery , after which NY Life moved for summary judgment on 2010. By decision/order dated October 22, 2010, the court (J. Schmidt, Ret.) granted NY Life's summary judgment motion dismissing plaintiff's first and second causes of action for retaliatory discharge with prejudice, but denied the motion as to plaintiff's third and fourth causes of action for age discrimination, without prejudice to renew after the completion of disclosure and the filing of a note of issue. The court found that the branch of NY Life's motion for summary judgment dismissing plaintiff's age-discrimination claims is premature because the issue of whether New York Life terminated plaintiff for "legitimate nondiscriminatory reasons" cannot be determined at this juncture because the record on this point is lacking. The Court also indicated a list of documents that should be submitted as part of a renewed motion for summary judgment by defendant. The Court further stated that "[t]he [list] is not limiting".
A review of the record shows that the parties exchanged discovery demands pursuant to the CPLR, however, there was extensive motion practice by the parties involving their respective discovery requests, together with numerous applications for extensions of time, for plaintiff to respond to defendant's demands. Additionally, in 2007 defendant moved in the United States District Court of the Eastern District of New York (EDNY) to remove the within action from state court to EDNY. While defendant's motion was granted, plaintiff's subsequent motion to remand the action from EDNY to state court was granted. By order dated January 26, 2009 (J. Dearie), the court found that plaintiff's age discrimination claims may be brought in state court, since they are not exclusively federal causes of action.
Four years of discovery ensued following the court's October 22, 2010 order ("the October 22, order"), and on January 12, 2015, Gregorian filed a Note of Issue and Certificate of Readiness. Thereafter, on February 11, 2015, Gregorian filed an Order to Show Cause seeking to re-depose Mark Pfaff, the Senior Vice President ("SVP") who made the decision to terminate Gregorian's employment and Seymour Sternberg ("Sternberg"), a former retired Chief Executive Officer and Chairman of the Board of NY Life. By order dated February 18, 2016, Gregorian's motion was granted, and NY Life was ordered to produce Pfaff and Sternberg for deposition. NY Life moved to re-argue and appealed to the Second Department that branch of the order directing the production of Sternberg. The re-argument motion was denied, and the appeal was subsequently withdrawn. Defendant filed its renewed motion for summary judgment on November 21, 2016.
Sternberg's deposition was ultimately held on February 7, 2017.
It should be noted that prior to defendant's renewed motion for summary judgment, Gregorian moved pursuant to CPLR 3126 for an order to strike defendant's answer and for default judgment due to alleged spoliation of evidence, and willful and contumacious refusal to comply with plaintiff's discovery demands. Gregorian alleged NY Life had engaged in a pattern of dilatory tactics with respect to disclosure of documentary evidence. Defendant cross-moved (amended) to vacate plaintiff's note of issue, compel plaintiff to produce all documents to defendant's requests for production. Plaintiff's motion was denied, and defendant's amended cross-motion was granted to the extent of vacating the note of issue and compelling plaintiff to produce certain documents. Subsequently, plaintiff filed a Note of Issue on December 15, 2017.
The Court now considers the within motion for summary judgment and opposition thereto.
DISCUSSION
As a threshold matter, the Court shall consider the merits of defendant's renewed motion for summary judgment, notwithstanding plaintiff's opposition. The Court notes that when defendant filed its renewed motion for summary judgment, plaintiff's motion to strike and defendant's amended cross-motion were extant. Since both motions were decided by order dated October 2, 2017, the Court finds that the issues raised therein, regarding spoliation and failure to produce documents are moot.
Plaintiff, in opposition, further argues that the Court should not consider the within motion because it does not comply with the court's October 22, 2010 order. This order outlined certain documents that should be submitted upon the renewal of the motion for summary judgment including Gregorian's own personnel files, performance evaluations of Raj Bakshi, and the performance evaluations of other managing partners within the other zones for the years of 2002-2005. The Court finds that the documents listed in the October 22, 2010 order is non-exhaustive, and therefore, defendant's inability to produce certain documents does not have preclusive effect. In this regard, the Court notes that the affidavit of, Christopher Pinchiaroli, Associate General Counsel at NY Life, establishes that defendant conducted a good faith search and produced the requested documents within its possession pursuant to its retention and company policy.
A motion for summary judgment in an age discrimination case requires a twofold analysis. First, to grant summary judgment, it must clearly appear that no material and triable issue of fact is presented (see Zuckerman v. City of New York , 49 NY2d 557 [1980] ). On a summary judgment motion, the moving party must set forth evidence that there is no factual issue and that it is entitled to summary judgment ( Zuckerman , 49 NY2d at 560 ). If the moving party establishes a basis for a grant of summary judgment the opposing party must present evidence that there is a triable issue of fact (Id.).
Further, in an age discrimination case, defendant must demonstrate that it is entitled to summary judgment pursuant to the three step framework analysis established in McDonnell Douglas Corp. v. Green , 411 US 792 [1973]. The McDonnell Douglas framework has been adapted for use in discrimination actions brought under the respective Human Rights Laws of the State and City of New York. At the same time, the statutory construction of NYCHRL, as amended by the Local Civil Rights Restoration Act of 2005 (Local Law 85) allows the local law to be construed, regardless of the construction given to comparable federal and state statutes, "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (see Bennett v. Health Mgt. Systems, Inc , 92 AD3d 29 [1st Dept. 2011] ). Thus, under NYCHRL, a claim for age discrimination is also analyzed under the lenient mixed-motive framework (Id. ). In Bennett, the court held that it is proper to grant summary judgment dismiss a claim under the NYCHRL only if the defendant demonstrates that it is entitled to summary judgment under both of these frameworks.
Under McDonnell Douglas , a plaintiff alleging employment discrimination in violation of NYSHRL and NYCHRL "has the initial burden to establish a prima facie case of discrimination." To meet this burden, plaintiff must show that (1) [he] is a member of a protected class; (2) [he] was qualified to hold the position; (3) [he] was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision. Upon the submission of such evidence, the plaintiff must then prove, by a preponderance of the evidence, that the defendant's stated reasons for its actions are only a pretext. (see McDonnell Douglas Corp. v. Green , 411 US 792 [1973] ).
To survive summary judgment at this juncture, the plaintiff must establish the existence of a material issue of fact as to whether 1) the employer's asserted reason for the challenged action is false or unworthy of belief and (2) more likely than not the employee's age or race was the real reason (see Ferrante v. American Lung Association , 90 NY2d 623 [1997] ).
The Court first considers whether plaintiff has made out a prima facie showing of age discrimination under McDonnell Douglas. It is well settled that in a discrimination case, such a showing must largely be inferred by circumstantial evidence, thus, courts have held that the burden of establishing a prima facie case of discrimination is "not onerous" (see Texas Dept. of Community Affairs v. Burdine , 450 US 248 [1981] ).
In employment discrimination jurisprudence, "the term ‘prima facie" ’ is used to denote a ‘legally mandatory, rebuttable presumption,’ rather than the more traditional meaning of describing plaintiff's burden of setting forth sufficient evidence to go before the trier of fact ( Sogg v. American Airlines , 193 AD2d 153 [1st Dept. 1993] citing Texas , supra at 450 US 248 ); see Bennett 92 AD3d, at 38 [initial de minimis prima facie showing’ required of a plaintiff under McDonnell Douglas should not be conflated with the "frequently onerous" showing required to defeat a well-supported summary judgment motion] ).
Applying the law to the facts in the instant case, therefore, the Court finds that plaintiff has made out a de minimis prima facie showing (i.e., other MP's in NY Life's general offices were in the protected class, were asked to leave, and were replaced by younger MP's). The Court notes, however, that even if an employee has made out a prima facie case under the McDonnell Douglas framework it does not necessarily mean that [he] will succeed in defeating a summary judgment motion supported by admissible evidence of legitimate reasons for the employer's challenged action.
The Court now considers whether defendant has rebutted the presumption by showing a legitimate, non-discriminatory reason to support its employment decision.
NY Life began documenting Gregorian's failure to meet its performance standards, consistent with the guidelines set forth in the Manual since 1997, at the beginning of his tenure as MP and through his termination in 2005, some fifteen years later. Accordingly, prior to his termination, Gregorian was issued multiple Performance Alerts, Performance Warnings, a Final Notice and numerous extensions of his Final Notice , addressing his inability to meet the basic competencies of the MP position including recruiting new agents and developing existing agents by conducting career profiles, holding staff meetings, completing supervisory interviews, lack of leadership, failure to implement the GOLD system, and failure to ensure the proper completion of administrative functions. Additionally, letters citing performance lapses in the Brooklyn GO were sent to Gregorian by senior management conducting Agency Standard Reviews.
Performance Alerts : 7/17/1997 Letter from Farina; 12/15/1997 Letter from Farina; July 9, 2002 Letter from Jaramillo; Performance Warning : 12/23/2002 Letter from Jaramillo; Final Notice: 11/15/2002 Letter from Jaramillo; Extensions of Final Notice: 4/8/2003 Letter from Jaramillo; 5/19/2004 Letter from Pfaff; 7/30/2004 Letter from Pfaff; 8/19/2004 Letter from Pfaff
See 12/1/2000 Letter from S.Kevin Ready, Director of Agency Standards and 6/7/2002 Letter from Diana Tortora-Huber, AVP-Agency Standards
Contrary to plaintiff's contentions, the record establishes that these guidelines were not arbitrarily applied, rather these guidelines were applied where an MP failed to meet the required performance expectations. Pfaff, as SVP in the Northeastern Zone, had the authority to implement these guidelines as needed. The record shows that Pfaff informed certain individuals in senior management, like Geyer, Morris, and NY Life's General Counsel, only after he had made the decision to terminate Gregorian. Contrary to plaintiff's assertions, there is no evidence that Pfaff discussed Gregorian's pension with anyone in senior management or that Pfaff knew that his termination decision would affect Gregorian's pension benefits. Gregorian's contention that NY Life saved money by terminating him prior to his pension benefits vesting at age 55 is totally speculative, since there is no evidence that Pfaff was aware of the cost of such pension benefits.The record establishes that Pfaff's decision to terminate Gregorian was based on a cumulative assessment of Gregorian's work performance, and the effect that such performance had on the Brooklyn GO's "bottom line". Pfaff reiterated throughout his testimony that Gregorian was not terminated because of his GPA, since a MP's "[GPA] is not entirely indicative of the job a [MP] is doing or not doing as evidenced by the experience of Mr. Gregorian as we moved closer and closer to his termination" "[T]he decision to terminate Joe centered more on, as I've indicate to you before, just the everyday basics of the job".
Pfaff, EBT P 254, L11
Pfaff, EBT P 307, L11
Pursuant to the guidelines, a Final Notice is issued in those situations where prior actions have not produced satisfactory results and should specify the objectives required, timeframe and assistance available. Significantly, "at the end of the performance or final notice period, if the Managing partner has not reached the objective specified in the improvement plan, his or her Managing partner's contract should be terminated ". (emphasis added )
Accordingly, Pfaff's December 2, 2004 letter constituted a Final Notice setting forth five objectives to be achieved within a three-month period, one of which, was the requirement for Gregorian to achieve a 2.5 GPA. The record establishes that Pfaff's December letter copiously outlined his overall concerns regarding the Brooklyn GO, particularly, its lack of growth. Pfaff's expectation that Gregorian continue to raise his GPA was consistent with his concerns that the Brooklyn GO showed no continued or sustained growth. FYC totals from 2001 through 2005 showed that growth in the Brooklyn office steadily declined, and substantiate Pfaff's concerns. According to Pfaff, "the five year compound annual growth rate between the time we merged [the Brooklyn GO] and the time we terminated [Gregorian], while there was an up and down the office didn't grow. It was flat". Further, Pfaff testified that he set a 2.5 GPA because December is typically the Brooklyn GO's "biggest month of the year" when a general office should do 13-18% of its business for the year. While the guidelines set a minimum GPA of 1.5, Gregorian proffers no evidence whatsoever that Pfaff is precluded from setting a higher GPA and is simply a red herring. Given the progressive action plans that Gregorian had received since 2002, the Court finds Pfaff's expectation that Gregorian achieve a 2.5 GPA, in conjunction with the remaining objectives, by December 31 was reasonable. It is not for the Court to second guess defendant's business judgment, since it is well settled that in an employment discrimination case the court "should not sit as a super-personnel department that reexamines an entity's business decisions" ( Baldwin v. Cablevision Sys. Corp. , 65 AD3d 961, 965 [1st Dept 2009] ). Further, in Forrest v. Jewish Guild for the Blind , 3 NY3d 295, 330 [2004] ), the Court of Appeals stated: "[I]t matters not whether the [employer's] stated reason for [the challenged action] was a good reason, a bad reason, or a petty one. What matters is that the [employer's] stated reason for [the action] was nondiscriminatory".
Gregorian's FYC track record indicates:
20012,818,040
20022,719,409
20032,646,613
20042,685,667
20052,570,389 (-7%)
Pfaff, 4/19/2016 EBT, 159:24-160:5)
Accordingly, the Court finds that defendant, NY Life has met its burden in establishing a legitimate non-discriminatory reason for the decision to terminate plaintiff's MP contract. The burden now shifts back to plaintiff to raise a triable issue as to whether the reasons for the termination were pretextual by producing evidence tending to show "both that the stated reasons were false, and that discrimination was the real reason" ( Forrest , 3 NY3d at 305 ).
Plaintiff relies primarily on the factual findings in Morgan v. New York Life Ins. Co. , 559 F3d 425, 429 [6th Cir 2009], to establish that the reasons proffered by defendant are pretextual. In Morgan , the Sixth Circuit Court of Appeals, held that there was sufficient evidence to find that age was a motivating factor in NY Life's decision to terminate Morgan, and affirmed the District Court's order denying NY Life's motion for judgment as a matter of law or new trial. In Morgan , plaintiff was appointed MP of the Northern Ohio General Office in 2011 at the age of 45 and was terminated in 2005. Gregorian argues that he is similarly situated to Morgan as they both were MPs, who were terminated just a few years short of vesting for pension benefits, and that their vacancies, upon termination, were respectively filled by younger employees.
As such, plaintiff asserts that the adjudicated facts [in Morgan ] preclude summary judgment and that such facts can be applied affirmatively and offensively by plaintiff to bar defendant from asserting the defenses it seeks to asserts. Gregorian submits depositions and trial transcripts from Morgan in an attempt to establish a causal connection between senior management who initiated the employment action in Morgan and senior management responsible for the employment action in Gregorian. However, such submissions are insufficient to defeat a motion for summary judgment, since CPLR 3117(a), precludes use of documents, depositions and trial testimony from another action unless the other action involves "same subject matter" and the "same" parties as the action at hand.
Additionally, Gregorian contends that defendant is collaterally estopped from opposing the factual findings in Morgan as both plaintiff in Morgan and Gregorian were MP's, in a protected class, terminated, and replaced by a younger managing partner. Here, the record establishes that the issues that litigated in Morgan , which are more fully discussed below, are distinct from the issues presented in the case at bar. It is well settled that "[Issue] preclusion does not apply when the essential facts of the earlier case differ from the instant one, even if they involve the same legal issues" ( Indagro S.A. v. Bauche S.A. , 652 F Supp 2d 482, 487 [SDNY 2009] ).
In any event, Gregorian's reliance on Morgan is misplaced, since there is no evidence from which a reasonable inference can be drawn of pretext.
Firstly, Gregorian fails to raise an issue of fact as whether defendant engaged in a "pattern and practice of age discrimination. Gregorian argues that in Morgan , Morris and Hilderbrand made "age bias" remarks and that NY Life, on a company-wide basis, had bias in favor of younger managers. Upon examination of the remarks made by Morris and Hilderbrand, the Sixth Circuit found that the remarks did not meet the criteria for age-related bias statements, and, therefore, were not probative of discrimination. The district court initially admitted these remarks because Morgan "presented substantial evidence that Morris and Hildebrand were both substantially involved in the decision to terminate his employment" ( Morgan v. New York Life Ins. Co., 507 F Supp 2d 808, 821 [ND Ohio 2007], affd in part, vacated in part, 559 F3d 425 [6th Cir 2009] ).
Here, Gregorian deposed Pfaff, Farina, Jaramillo, Morris, Hildebrand and Sternberg, all of whom testified that the Northeastern Zone, through Pfaff, made the decision to terminate Gregorian, and that Morris, Hildebrand and Sternberg were not directly involved in the decision. Thus, the testimonial evidence negates any inference of age discrimination since Morgan, a South Central Zone MP, and Gregorian a Northeastern Zone MP, were not reviewed, supervised or discharged by the same individuals. Significantly, in the case at bar, Gregorian testified that he had never heard anyone make any discriminatory remarks about age.
In Morgan, the record shows that a promotability index was generated for Morgan's position prior to the decision to terminate him, and that his replacement was younger in age. In the case at bar, Gregorian points to the age of his 40 year old replacement, Raj Bakshi, and his alleged performance history, as evidence that NY Life preferred a younger replacement. However, Gregorian's assertions are, again, unsupported by the evidence. The record establishes that Pfaff filled Gregorian's vacant position using the "promotability index," an analytic used by the Agency Department which identifies eligible individuals based on objective, pre-determined criteria.
Pfaff received the computer-generated list of individuals from the Agency Department, proceeding down the list by ranking. The evidence shows that Pfaff had no discretion to deviate from the list. Sandra Ngo, a female 10 years older than Gregorian, was the first candidate on the list. After she declined the position, Pfaff offered Gregorian's vacant position to three older managing partners and one individual the same age as Gregorian, all of whom declined the offer. A total of six individuals declined the position, before Raj Bakshi accepted. Firstly, the Court finds that Gregorian's attempt to question Raj Bakski's selection based on his performance history meritless, since the record establishes that vacancy selection using the promotability index is an objective process, which could not be deviated from. Additionally, since defendant identified, interviewed, and offered to fill Gregorian's vacancy with older MP candidates, Gregorian failed to establish that defendant's termination decision was false or pretextual. "When a plaintiff has been replaced by someone older than himself, maintaining an age discrimination claim becomes rather difficult because a fact-finder can draw no reasonable, immediate inference of discrimination" ( Tarshis v. Riese Org., 195 F Supp 2d 518, 526 [SDNY 2002], affd, 66 Fed Appx 238 [2d Cir 2003] ).
Further, in Morgan , NY Life acknowledged deviating from its normal practices. The record shows that younger MP's who had relatively low GPA's were not disciplined due to extenuating circumstances. Here, the record shows that Gregorian had high blood pressure and was hospitalized for a heart procedure in May 2004. Notwithstanding that Gregorian was on Final Notice at the time of his illness, Pfaff extended the date in the Final Notice for Gregorian to achieve his goals from June 30, 2004 to September 30, 2004.
Viewing the record as a whole, the Court has determined that the evidence relied upon by plaintiff has failed to raise a triable issue of fact as to whether the defendant's reason for termination was false and pretextual. "[A] challenge to the correctness of an employer's decision does not, without more, give rise to the inference that the [adverse action] was due to age discrimination ( Kelderhouse v. St. Cabrini Home, 259 AD2d 938, 939 [3d Dept 1999] ) Accordingly, analyzed under the McDonnell Douglas framework, NY Life is entitled to summary judgment.
Further, based on the above discussion of the record, the Court also finds that defendant is also entitled to summary judgment under the mixed-motive framework. "[In] the mixed motive context, the question on summary judgment is whether there exist triable issues of fact that discrimination was one of the motivating factors for the defendant's conduct." (see Weiss v. JP Morgan Chase & Co., 2010 WL 114248 [SDNY NY 2010]. While plaintiff may not need to raise an issue regarding the falsity of the reason to terminate his position, it is well settled that plaintiff must come forward with any evidence that amounts to circumstantial evidence that age discrimination was a motivating factor in order to support a finding of unlawful discrimination (see generally Melman v. Montefiore Med. Ctr. , 98 AD3d 107, 127-28 [1st Dept 2012] ). This principle applies as much to "mixed motive" cases as to cases in which discrimination is alleged to have been the sole motive for the adverse action (see Holcomb v. Iona Coll. , 521 F3d 130, 138 [2d Cir 2008] ; see also Campo v. Slater , 128 Fed Appx 173, 174-175 [2d Cir 2005]. Here, Gregorian has failed to come forward with any evidence, either direct or circumstantial, to which it could be rationally inferred that age discrimination was a motivating factor in NY Life's termination decision.
Based on the foregoing, the defendant's motion for summary judgment is granted to the extent of dismissing plaintiff's complaint in its entirety.
This constitutes the decision and order of this court.