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
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
proprietary traders associated and traded Worlco's
(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
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).
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.