New York Life agent." (Decl. of Sophia Magrath at ¶ 4). To receive a
PIC, the agent must fill out a PIC application form and the agent's
physician must complete an attending physician's statement. (Id. at
¶ 6). After review, if the agent is approved for a PIC the agent will
receive PIC income. According to New York Life's records, plaintiff never
applied for a PIC. (Id. at ¶ 7).
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
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).
Plaintiff did not earn the required $16,500 of FYCs by September 30,
1999, although he contends that he had policies in underwriting. (Pl.
Dep. Tr. at 227, 259). Plaintiff has "no doubt" that he would still be an
agent at New York life if he had complied with the
(Id. at 246). Vice President Richard Nelson issued a thirty-day notice to
plaintiff stating that his contract was terminated effective November 7,
1999, for failure to meet the Contract Maintenance Standard. (Gordon
Dep. Tr. at 133-34). This termination was directed by Anderson-Miller,
although plaintiff contends that Gordon "could have averted it." (Pl.
Dep. Tr. at 246-47). Anderson-Miller states that her decisions regarding
plaintiff's contract were made without knowledge of plaintiff's race or
medical condition. (Anderson-Miller Decl. at ¶ 21). Anderson-Miller
also states that she was never aware of any application for a reasonable
accommodation by plaintiff, and that if plaintiff had made such an
application, it would have been forwarded to her. (Id. at ¶ 22).
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 them more?
A The public.
A: Because the white agents can sell to both whites and blacks, but I
have difficulty convincing a lot of whites and have difficulty
Q: Who has difficulty?
A: Me, compared to a white agent.
Q: Why is that?
A: Black people, mostly minority people, like doing business with
Q: Why is that?