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July 9, 2004.

WORLDCO, LLC, Defendant.

The opinion of the court was delivered by: DENNY CHIN, District Judge


In this employment discrimination case, plaintiffs Meir Aaron Schreiber and Neal M. Friedfertig allege that defendant Worldco, LLC ("Worldco") wrongfully discharged them, purportedly because of their age, in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 629 et seq.; the New York State Human Rights Law, New York Executive Law § 296 et seq.; and the New York City Human Rights Law, New York City Administrative Code §§ 8-107 and 8-502 et seq. Worldco moves for summary judgment dismissing the complaint. For the reasons discussed below, the motion is denied. BACKGROUND

  A. The Facts

  Construed in the light most favorable to plaintiffs, the non-moving parties, the facts are as follows:
1. The Parties
  At all times relevant to the instant action, Worldco was a brokerage and proprietary trading firm*fn1 with whom proprietary traders associated and traded Worlco's capital.*fn2 (Schreiber Dep. at 69). The compensation of Worldco traders was based upon their profitability. (Id. at 69-70; Friedfertig Dep. at 61). The traders did not receive a salary and only made money if they were net profitable. (Schreiber Dep. at 69-70; Friedfertig Dep. at 61).

  Schreiber was born on October 1, 1949. (Schreiber Dep. at ¶ 1). Prior to his association with Worldco, he was a practicing attorney who also traded in long-term securities for his own personal gain. (Id. at 7-8, 17-25). Friedfertig was born on May 20, 1949. (Friedfertig Dep. at 2). Prior to his association with Wordco, he owned a small chain of retail bookstores. After selling his book business, Friedfertig traded long-term securities for his own account. (Id. at 9-11). Before Worldco, neither plaintiff had day trading*fn3 experience.

  2. Plaintiffs' Affiliation with Worldco

  In June 2000, plaintiffs, who were approximately fifty years old at the time, met with Walter Bruan, the Director of Marketing for Worldco, to discuss the possibility of becoming associated with Worldco as proprietary traders. (Schreiber Dep. at 23, 28-29, 71; Friedfertig Dep. at 16-17, 28-29, 74). Bruan offered plaintiffs positions as traders, and they accepted. (Schreiber Dep. at 28-29; Friedfertig Dep. at 28-29). Also at the June 2000 meeting, Braun told plaintiffs that they would be trained by David Fielder, a senior trader who, along with his son Saul Fielder, served as a group leader for a particular group of Worldco traders (the "Fielder group"). (Schreiber Dep. at 24-26; Friedfertig Dep. at 23; David Fielder Dep. at 5).

  In February 2001, eight months after being offered a trading position, Friedfertig passed the required Series 7 and Series 55 exams and began trading at Worldco. (Friedfertig Dep. at 36, 38-40). Schreiber, after passing the Series 7 and Series 55 exams, began trading at Worldco in March 2001, almost nine months after being offered a trading position. (Schreiber Dep. at 32). After they began trading, plaintiffs made numerous inquiries of Bruan and at least one inquiry of Yvonne Beri-Walker, a Worldco human resources manager, regarding placement with the Fielder group for training. (Friedfertig Decl. at ¶ 5; Schreiber Decl. at ¶ 6).

  On one occasion, in approximately April or the beginning of May 2001, Schreiber asked Saul Fielder why he was not permitted to join the Fielder group and Saul Fielder responded "that David Fielder . . . and [] Bruan had decided that they did not want older people in the group." (Id. at ¶ 8; Schreiber Dep. at 48). Saul Fielder also stated that "older persons do not have the same energy level as younger persons." (Schreiber Decl. at ¶ 9). The following day, Schreiber relayed the substance of his conversation with Saul Fielder to Bruan, who said that "it was true but that he would try to get [Schreiber] into the group." (Id. at ¶ 10). No such placement ever occurred. (Id.).

  On another occasion, in May or June 2001, one of Worldco's branch managers, Peter Brennan, asked Schreiber, "Are you a little tired because you're not a youngster anymore?" when he saw Schreiber put his head down on his desk. (Schreiber Dep. at 21-22, 35-36). Further, on more than one occasion Brennan (1) stated to Schreiber that "trading was a young person[']s profession," and (2) commented to Friedfertig that "when he was a trader he was young." (Id. at ¶ 11; Friedfertig Decl. at ¶ 8). Additionally, on another occasion, in response to Friedfertig's question, "How am I doing?" Brennan answered, "Pretty good except for your age." (Friedfertig Dep. at 81).

  In June 2001, Friedfertig asked Beri-Walker why his compensation was so low. "She responded by stating that the company had to offer more money to younger employees in order to attract them." (Id. at ¶ 12).

  3. Plaintiffs' Termination from Worldco

  On August 29, 2001, when Schreiber was fifty-one years old, he was informed by Al Guido, the Director of Proprietary Trading Affairs, that he would be required to contribute $10,000 to his capital account to continue his employment. (Schreiber Decl. at ¶ 13). At that time, Schreiber's net losses aggregated $18,138.12. (Krumholtz Aff. Ex. B). Schreiber chose to resign rather than contribute the capital. (Id. at ¶ 13).

  In October 2001, when Friedfertig was fifty-one years old, Bruan terminated his employment without providing him with an explanation for the discharge. (Friedfertig Decl. at ¶ 10). At that time, Friedfertig's net losses aggregated $8,665.14. (Krumholtz Aff. Ex. B).

  Plaintiffs never received any monetary compensation while associated with Worldco because they were never net positive. (Schreiber Dep. at 73; Friedfertig Dep. at 53).

  B. The Instant Action

  Plaintiffs filed the instant suit on May 29, 2002. The parties engaged in discovery and the instant motion for summary judgment followed. In support of its motion, defendant argues that (1) plaintiffs cannot establish a prima facie case of age discrimination because, inter alia, they cannot establish that they were discharged because of their age, and (2) even if plaintiffs could establish a prima facie case of age discrimination, they could not overcome defendant's legitimate, non-discriminatory reason for termination. Specifically, defendant contends that "Schreiber and Friedfertig's services were terminated as part of a company-wide downsizing concurrent with the stock market downturn, along with their poor performance as traders." (Def.'s Mem. at 6).

  For the reasons set forth below, defendant's motion is denied.


  A. Applicable Law

  1. Summary Judgment ...

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