the Marriage Policyholders of La Suisse's position that the policies were void or voidable because the brokers failed to inform them that were selling them to individuals who were all but sure to marry at an early age. This letter evinces no racial animus or discriminatory intent. It expressed pique at having been duped.
Second, plaintiffs cite the deposition testimony of La Suisse employees. Luigi Schiattino testified, for example, that he inferred from the Marriage Policyholders' names that they were Jewish. [Plaintiffs' Opposition 12; Mahon Decl. Ex. C, at 81, 98-99]. Similarly, the Chairman of La Suisse's Board of Directors, Georges Muller, testified that he knew the Marriage Policyholders were Jewish as early as 1990. [Plaintiffs' Opposition 13; Mahon Decl. Ex. F, at 32-33, 51-52, 82-83]. Indeed, the record reveals that the policies were created at the request of a broker who wanted to sell them to Jews, so it would be all but impossible to conclude that La Suisse was unaware that most, if not all, of their customers were Jewish. And La Suisse does not contest knowing that these policies were sold almost exclusively to Jews. [Defendant's 56.1 Statement ¶ 7; Defendant's Reply 6].
A defendant's knowledge of a plaintiff's race may be necessary to prove discriminatory intent. See Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1987). But it is not, without more, sufficient to support such an inference. Indeed, it is not even sufficient to establish a prima facie case. If that were the case, then a minority employee would be able to establish a prima facie case as long as his employer fired him and knew that he was a member of a protected class. In order to support an inference of discrimination, knowledge of a plaintiffs race must exist in tandem with other circumstances. Thus, in the employment context, the fact that a minority employee was fired and replaced with a Caucasian individual is sufficient to establish a prima facie case. See Tarshis v. Riese Org., 211 F.3d 30, 36 (2d Cir. 2000). Defendant's knowledge that plaintiffs were Jewish, by itself, is insufficient to either raise an inference of discrimination or show that La Suisse's legitimate economic reasons were not its true motivation.
3. Evidence Concerning La Suisse's Calculation of Premiums
Finally, plaintiffs contend that discriminatory animus toward holders of the Marriage Policies as Jews can be inferred from evidence about how La Suisse set the premiums for those policies. They point to three internal La Suisse memoranda from 1990, all of which indicate that La Suisse may have calculated premiums for the Marriage Policies with an actuarial pool consisting of Israeli Jews. [Mahon Decl., Exs. I, J, K].*fn13
The first memo, dated January 24, 1990, appears to compare what La Suisse's yield would be if purchasers of "endowment life insurance with additional marriage insurance" married at the rate of the general Swiss population with what La Suisse's yield would be if policyholders married at the rate of Israeli Jews. [Mahon Decl., Ex. I].
La Suisse employees met to discuss the January 24 memo, and decided that "the individual endowment life/marriage insurance product designed for the Swiss market does not offer sufficient guarantees to insure foreigners, in the event that their behavior is dictated by the lure of the yield obtained as a result of an early marriage." [Mahon Decl., Ex. J].*fn14 As result, instead of creating "a new additional marriage insurance, which would involve a new rate and new conditions," La Suisse decided to "apply a refundable premium — without a commission or dividend — in the event that the policy reaches maturity, and limit the entry age and/or duration that we offer to foreigners." Id. The second memorandum, dated February 23, 1990, calculated the "additional marriage premium for all possible ages and durations, based on the assumption that the probability of marriage is ten times" that of the statistics they had for Israeli Jews. Id.
La Suisse employees then met again to discuss the February 23 memorandum. They decided that "the yield of endowment life/marriage insurance for residents abroad should be subject to an additional premium that is not excessive compared to the premium for the basic scheme." [Mahon Decl., Ex. K]. The third memo, dated March 7, 1990, addressed the calculation of the "additional premium." Id. "In order to establish the amount of the additional premium," the memo states, "the question regarding the policy's yield — from the buyer's point of view — must be taken into account: it must be as close as possible to the yield obtained by a Swiss person and must not fall below zero." Id. As a result, La Suisse decided to adopt "the additional premium [for the Marriage Policies] for which the yield in the case of marriage at 16 years of age is 80% of that obtained for a Swiss person under the same circumstances." Id.
Plaintiffs do not contend that La Suisse discriminated against them in setting the terms (i.e. premium amounts) of the Marriage Polices.*fn15 However, they base two arguments concerning the administration of these policies in later years on these memoranda. First, they argue that they establish that La Suisse knew that the policyholders were Jewish well before 1995. [Plaintiffs Memorandum of Law 7]. As I explained above, however, La Suisse does not dispute that it knew the policyholders were Jewish as early as 1990 — indeed, La Suisse stipulated that it created this product so that Bituswiss could offer it to a Jewish market in New York. [JPTO, Stipulated Facts ¶ 6]. Defendant's knowledge of plaintiffs' race does not in and of itself support an inference of discrimination.
Second, plaintiffs argue that the memoranda show that La Suisse considered the possibility that policyholders would marry as early as age sixteen. [Plaintiffs Memorandum of Law 7]. Although they never quite come out and say so, plaintiffs implicitly argue that the memoranda show that La Suisse's proffered nondiscriminatory reason — that it did not know policyholders would marry at such an early age, and that it therefore incurred unexpected massive losses — is false.
Of course, the memoranda do not tend to show that La Suisse expected large numbers of Marriage Policyholders to marry at ages as early as sixteen. But they do show that La Suisse used ages as low as sixteen as a fixed variable when performing actuarial calculations using a population (Israeli Jews) that does not tend to marry as young as the Chassidic population. This is enough (albeit barely enough) to get plaintiffs to trial on the issue of pretext.
For the reasons stated above, La Suisse's motion for summary judgment on plaintiffs' Section 1981 claim is denied.
This is the decision and order of the Court.