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April 3, 2002


The opinion of the court was delivered by: Denny Chin, United States District Judge


Plaintiff Joseph Anyan sold insurance products for defendant New York Life Insurance Company ("New York Life") from 1980 through 1999, when his contract with New York Life was terminated. Anyan alleges that defendants discriminated against him on the basis of his race and color, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title VII"), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("section 1981"), and his disability, namely, diabetes, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12102 et seq. (the "ADA"). Anyan also brings claims under the New York State Human Rights Law (the "NYHRL"), N.Y. Exec. Law § 296 et seq. (McKinney 2001).

Defendants move for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, asserting that (i) plaintiff was not an employee within the meaning of the statutes, and (ii) even assuming that he was an employee, he was dismissed for failing to meet New York Life's production standards and not for any discriminatory reason. As set forth below, a reasonable jury could only conclude that Anyan was an independent contractor rather than an employee. Moreover, no reasonable jury could find that defendants discharged plaintiff because of his race or disability. Therefore, defendants' motion is granted and the complaint is dismissed.


I. The Facts

For purposes of this motion, the facts attested to by plaintiff are assumed to be true and all conflicts in the evidence have been resolved in his favor.

A. Plaintiff's Contract With New York Life

There are two types of agents at New York Life:

Training Allowance Subsidy Agents, or "TAS agents," and "Established Agents." (Decl. of Margaret Anderson-Miller at ¶ 2).*fn1 TAS agents are individuals who have been affiliated with the company for less than three years and are considered New York Life employees. (Id. at ¶ 3). After three years, TAS agents are deemed fully trained and become Established Agents. (Id. at ¶ 3). Established Agents are treated as independent contractors, and must produce a certain level of sales to maintain their contracts. (Id. at ¶¶ 4-5)

Plaintiff signed an "Apprentice Field Underwriter's Agreement" on August 25, 1980, which provided a salary of $600.00 per month. (Pl. Ex. 31). The Agreement states that it "shall commence on the effective date stated above and terminate at the end of the third Contract Year, as defined in this Agreement, or earlier in accordance with its provisions." While the August 25, 1980 Agreement was in effect, plaintiff was considered a New York Life employee, "subject to its direction and control," and was obligated to "diligently study the NYLIC Training Courses, fulfill the Company's requirements in connection therewith, comply with any other educational and training requirements of the Company, and keep such records and make such reports as may be required." (Id.).

Apparently, it did not take plaintiff three years to learn how to be an agent, because he signed an "Agent's Contract" on October 5, 1981. (Pl. Ex. 33). Paragraph 5 of that contract states:

[N]either the term "agent," used in this contract solely for convenience in designating one of the parties, nor anything contained in this contract or in any of the rules or regulations of the corporation, shall be construed as creating the relationship of employer or employer and employee between the corporation and the agent.

(Pl. Ex. 33; see Pl. Dep. Tr. at 35, 62, 123).

In 1983, plaintiff signed a "Registered Representative's Agreement" enabling him to solicit applications for the New York Life Variable Contracts Corporation ("VCC") in addition to New York Life. (Pl. Ex. 35). The Registered Representative's Agreement provided that plaintiff's Agent's Contract "shall continue in full force and effect according to [its] terms and nothing herein shall be construed as relieving the agents from responsibilities under such contracts." (Id.) The Registered Representative's Agreement also stated that in agreeing to submit to the supervision of VCC "the agent will, nevertheless, be considered to be and act at all times as an independent contractor under contract with the VCC, the Company and NYLIAC and not as an employee of either VCC, the Company, or NYLIAC, except that nothing in this Agreement shall be considered as altering the relationship of an agent designated as an employee as a result of any applicable training allowance agreements." (Id.)

After 1983, New York Life did not withhold any state, local, or federal income taxes from plaintiff. (Pl. Dep. Tr. at 62-3). Plaintiff acknowledges that commissions were "the only thing we [we]re paid," except for a fluctuating monthly paycheck based on previous policies. (Id. at 63).

Plaintiff's contract did not require him to work at New York Life's offices and he was not required to work a 40-hour week. (Id. at 47, 56). Plaintiff did receive referrals and projects from New York Life, but he could refuse those projects at any time. (Id. at 54-6). Plaintiff did not have paid vacation, holidays, or sick leave. (Id. at 47-48). From 1996 until 1999 plaintiff rented space from New York Life. (Id. at 53). Prior to 1996 plaintiff shared an office at New York Life's corporate offices. (Id.). During his entire career as an agent, he had to pay for his own telephone expenses, postage, stationery, office supplies, computer, business cards, and travel expenses. (Id. at 48-52). He also paid an equipment charge for photocopying. (Id. at 48). New York Life did not place any prohibitions on plaintiff's ability to hire a secretary or other clerical assistants, and plaintiff used temporary workers without getting clearance from New York Life. (Id. at 57, 61).

B. Plaintiff's Diabetes

Plaintiff developed diabetes in 1996. Plaintiff believes that his diabetes developed due to the stress of a class action suit in which he was named a defendant. (Id. at 104) While plaintiff's physician has not linked the diabetes to the lawsuit, he did say that it was related to the stress of plaintiff's job. (Id. at 104). On March 28, 1997, plaintiff's doctor wrote a note to New York Life describing plaintiff's diabetes. (Id. at 106). The note stated:

Joseph Anyan has been followed in my office for uncontrolled diabetes and hypertension since 11/96. He is currently taking the following medications: Glucotrol XL, two tab daily; Glucophage, 500 milligram, one tab twice daily; Vasotec, 20 milligram, one tab daily.

(Pl. Ex. 41; Pl. Dep. Tr. at 108).

The medication "didn't start controlling everything immediately; it took time." (Id. at 107). Plaintiff gave the note to a managing partner for inclusion in his file. Plaintiff "wanted her to know that I am not going to operate on full speed because I can't — I can't travel, from when I had appointments, by the time I go to the train station, I need a bathroom, you know, things like that." (Id. at 107). That managing partner left New York Life, but plaintiff believed that "this thing [the note] should have been available to any new managing partner." (Id. at 111). Plaintiff is uncertain whether the next managing partner knew of the note's existence, but the next partner did inquire into plaintiff's health and knew that plaintiff was sick. (Id. at 113).

Managing Partner George Gordon ("Gordon") who plaintiff alleges was primarily responsible for his discharge, was not aware of plaintiff's diabetes before plaintiff's contract was terminated, but plaintiff contends that Gordon "should have known" about plaintiff's diabetes because Gordon's predecessor knew plaintiff was "sick," and because plaintiff applied for an insurance policy and was declined because of his high blood sugar. (Gordon Dep. Tr. at 80, 130; Pl. Dep. Tr. at 115, 170, 243-46). As discussed below, however, Gordon was not transferred to New York until 1999, approximately two years after the doctor's note was written.

C. The New York Life Production Standard

To maintain their contracts with New York Life, Established Agents must make a certain amount of sales pursuant to the Contract Maintenance Standard, or "production standard." (Anderson-Miller Decl. at ¶ 5). Established Agents who meet the requisite level of sales are known as "proactive" agents. (Id. at ¶ 6). These production standards apply to all agents, and are established and published annually by the agency department. (Id. at 7-8).

The production standard for 1998 and 1999 was set at $22,000 in first year commissions ("FYCs"). (Id. at 9). An agent who failed to make sufficient sales in 1998 would be placed on quarterly probation in which he would have to meet the "proactive" levels set for the next year and every quarter on a pro-rata basis. (Id. at ¶ 8; Pl. Dep. Tr. at 217). Therefore, an agent who did not make $22,000 in FYCs by December 31, 1998 would be placed in probation in early 1999 and be required to produce $5,500 in FYCs in the first quarter of 1999, then $11,000 by the end of the second quarter, then $16,5000 by the end of the third quarter of 1999 and then $22,000 by the end of the fourth quarter of 1999. (Anderson-Miller Dec. at ¶ 9; Pl. Dep. Tr. at 216-19).

D. The Termination

Plaintiff failed to meet the production standards for both 1997 and 1998, but states that the standards were not enforced for those years. (Pl. Dep. Tr. at 215, 223, 258; but see Anderson-Miller Dec. at ¶¶ 10, 25). At his deposition, plaintiff attributed his decline in production to the stress of the class action suits in which he was a named defendant and the increased difficulty of selling New York Life products in the face of bad publicity. (Pl. Dep. Tr. at 116-18). Plaintiff also noted that it was the stress of the class action that "triggered" his diabetes. (Id. at 118). Plaintiff was informed that he had to comply with the "proactive" level for the first quarter of 1999 by making $5,500 in FYCs or his contract would be terminated. (Id. at 218-19, 223). Plaintiff did not meet the 1999 proactive level but his contract was not immediately terminated.

In early 1999 Gordon was transferred from New York Life's Boston General Office to New York City to be Managing Partner of the new Greater New York General Office. (Anderson-Miller Dec. at 12). The Greater New York General Office was composed of four previously separate General Offices that were merged into one large General Office. (Id.). To ease the transition from the prior managers to the new management, Gordon obtained permission to declare an "amnesty" for one calendar quarter for all non-proactive agents. (Anderson-Miller Dec. at ¶ 13). Under this "amnesty" program, all agents who were not proactive in 1998 and also failed to meet the 1999 first quarter goal would not have their contracts terminated after March 30, 1999 as scheduled. (Id. at ¶ 14, Pl. Dep. Tr. at 219-223).

Plaintiff did not earn the required $11,000 in FYCs by June 30, 1999. (Pl. Dep. Tr. at 227-8). He was granted an extension of his contract, however, because he had a case in underwriting that would bring him into compliance with the production standard. (Id. at 225). Gordon asked Anderson-Miller to grant this extension. (Gordon Dep. Tr. at 124).

E. Purported Discrimination at New York Life

At his deposition, plaintiff stated that "it was easier for the white — young white men to make it . . . because they have better connections; they get the best leads from the managers." (Pl. Dep. Tr. at 81). In particular, plaintiff alleged that "George Gordon . . . was dishing out leads." (Id. at 170). When asked whether any white agents received leads from Gordon, plaintiff named one agent, but he could not say how many leads were given to that agent, provide the dates the leads were given, state how much the leads were worth, or say with certainty how he knew that the agent received leads from Gordon. (Id. at 82-4). When asked "on what do you base that statement [the allegation that the white agent received leads from Gordon], plaintiff replied "because that's how it's been done." (Id. at 82). Plaintiff also acknowledged that Gordon gave leads to at least one African-American agent, Celestina Dadzie. (Id. at 94-95). At Gordon's deposition, he said that when "orphan" leads were assigned, they were assigned according to company rules requiring that orphan leads could only be given to proactive agents. (Gordon Dep. Tr. at 125). Plaintiff said:

A: . . . The new white agents can pick up quickly.

Q: Why is that?

A: Well, because people listen to them more.

Q Who listens to ...

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