United States District Court, S.D. New York
July 9, 2004.
MEIR AARON SCHREIBER and NEAL M. FRIEDFERTIG, Plaintiffs,
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
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).
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 Standard
Summary judgment will be granted when "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 585-87 (1986). Accordingly, the Court's task is not
to "weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Summary judgment is inappropriate if, resolving all ambiguities
and drawing all inferences against the moving party, there exists
a dispute about a material fact "such that a reasonable jury could
return a verdict for the nonmoving party." Id. at 248-49
(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970));
accord Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116
(2d Cir. 1991).
To defeat a motion for summary judgment, however, the nonmoving
party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus., 475 U.S. at 586. There is no issue for trial unless
there exists sufficient evidence in the record favoring the party
opposing summary judgment to support a jury verdict in that
party's favor. Anderson, 477 U.S. at 249-50. As the Court held
in Anderson, "[i]f the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Id.
2. Age Discrimination
The "ultimate issue" in any employment discrimination case is
whether the plaintiff has met his or her burden of proving that
the adverse employment decision was motivated at least in part by
an "impermissible reason," i.e., that there was discriminatory
intent. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 146 (2000); Fields v. N.Y. State Office of Mental
Retardation & Developmental Disabilities, 115 F.3d 116, 119 (2d
Cir. 1997). a. McDonnell Douglas Framework
In the absence of direct evidence of discrimination, a
plaintiff in an employment discrimination case usually relies on
the three-step McDonnell Douglas test. First, a plaintiff must
establish a prima facie case of unlawful discrimination by
showing that (1) he or she is a member of a protected class (2)
who performed his or her job satisfactorily (3) who suffered an
adverse employment action (4) under circumstances giving rise to
an inference of discrimination. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973) (Title VII); Stratton v. Dep't
for the Aging, 132 F.3d 869, 879 (2d Cir. 1997) (ADEA).
Second, if the plaintiff establishes a prima facie case, a
rebuttable presumption of discrimination arises, and the burden
then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the employment decision. See
Reeves, 530 U.S. at 143; Stratton, 132 F.3d at 879.
Third, if the employer articulates a nondiscriminatory reason
for its actions, the presumption of discrimination is rebutted
and it "simply drops out of the picture." St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502, 511 (citation omitted); see James v.
N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). The burden
then shifts back to the plaintiff to show, without the benefit of
any presumptions, that more likely than not the employer's
decision was motivated, at least in part, by a discriminatory
reason. See Fields, 115 F.3d at 120-21; Connell v. Consol.
Edison Co., 109 F. Supp.2d 202, 207 (S.D.N.Y. 2000). To meet this burden, the plaintiff may rely on evidence
presented to establish his prima facie case as well as
additional evidence. It is not sufficient, however, for a
plaintiff merely to show that he satisfies "McDonnell Douglas's
minimal requirements of a prima facie case" and to put
forward "evidence from which a factfinder could find that the
employer's explanation . . . was false." James, 233 F.3d at
153. Instead, the key is whether there is sufficient evidence in
the record from which a reasonable trier of fact could find in
favor of plaintiff on the ultimate issue, that is, whether the
record contains sufficient evidence to support an inference of
discrimination on the basis of age. See id. at 157;
Connell, 109 F. Supp.2d at 207-08.
As the Second Circuit observed in James, "the way to tell
whether a plaintiff's case is sufficient to sustain a verdict is
to analyze the particular evidence to determine whether it
reasonably supports an inference of the facts plaintiff must
prove particularly discrimination." 233 F.3d at 157; see
Lapsley v. Columbia Univ., 999 F. Supp. 506, 513-16 (S.D.N.Y.
1998) (advocating elimination of McDonnell Douglas test in
favor of simplified approach focusing on ultimate issue of
whether sufficient evidence exists to permit jury to find
discrimination); see also Norton v. Sam's Club,
145 F.3d 114, 118 (2d Cir. 1998) ("The thick accretion of cases
interpreting this burden-shifting framework should not obscure
the simple principle that lies at the core of anti-discrimination
cases. In these, as in most other cases, the plaintiff has the ultimate burden of
b. Verbal Comments and Stray Remarks
Verbal comments constitute evidence of discriminatory
motivation when a plaintiff demonstrates that a nexus exists
between the allegedly discriminatory statements and a defendant's
decision to discharge the plaintiff. See Zhang v. Barr Labs.,
Inc., 98 Civ. 5717, 2000 U.S. Dist LEXIS 6237, at *13 (S.D.N.Y.
May 8, 2000) (citing cases). Often, however, an employer will
argue that a purportedly discriminatory comment is a mere "stray
remark" that does not constitute evidence of discrimination.
See, e.g., Danzer v. Norden Systems, Inc., 151 F.3d 50, 56
(2d Cir. 1998) ("Stray remarks, even if made by a decision maker,
do not constitute sufficient evidence [to support] a case of
employment discrimination."); Campbell v. Alliance Nat'l Inc.,
107 F. Supp.2d 234, 247 (S.D.N.Y. 2000) ("`Stray remarks by
non-decision-makers or by decision-makers unrelated to the
decision process are rarely given great weight, particularly if
they were made temporally remote from the date of the
decision.'") (quoting Ezold v. Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992)); Burrell v.
Bentsen, 91 Civ. 2654, 1993 U.S. Dist. LEXIS 18005, at *29-30
(S.D.N.Y. Dec. 21, 1993) (stray remarks in workplace, statements
by non-decisionmakers, and statements by decisionmakers unrelated
to decisional process are not by themselves sufficient to satisfy
plaintiff's burden of proving pretext) (internal quotations and
In determining whether a comment is a probative statement that
evidences an intent to discriminate or whether it is a
non-probative "stray remark," a court should consider the
following factors: (1) who made the remark, i.e., a
decisionmaker, a supervisor, or a low-level co-worker; (2) when
the remark was made in relation to the employment decision at
issue; (3) the content of the remark, i.e., whether a
reasonable juror could view the remark as discriminatory; and (4)
the context in which the remark was made, i.e., whether it was
related to the decisionmaking process. See Minton v. Lenox
Hill Hosp., 160 F. Supp.2d 687, 694 (S.D.N.Y. 2004); Rizzo v.
Amerada Hess Corp., 99 Civ. 0168, 2000 U.S. Dist. LEXIS 18754,
at *17-18 (N.D.N.Y. Dec. 29, 2000) ("An employer's discriminatory statements will rise above the level of stray remarks . . . when
the statements are: (1) made by the decision maker or one whose
recommendation is sought by the decision maker; (2) related to
the specific employment decision challenged; and (3) made close
in time to the decision."); Ruane v. Continental Cas. Co., 96
Civ. 7153, 1998 WL 292103, at *8 (S.D.N.Y. June 3, 1998);
Mosberger v. CPG Nutrients, Civ. No. 01-100, 2002 U.S. Dist.
LEXIS 22254, at *23 (W.D. Pa. Sept. 6, 2002) ("Discriminatory
stray remarks are generally considered in one of three categories
those made (1) by a non-decisionmaker; (2) by a decisionmaker
but unrelated to the decision process; or (3) by a decisionmaker
but temporally remote from the adverse employment decision.")
(internal quotations and citations omitted).
Additionally, the Second Circuit has emphasized that
"[a]lthough evidence of one stray comment by itself is usually
not sufficient proof to show age discrimination, that stray
comment may `bear a more ominous significance' when considered
within the totality of the evidence." Carlton, 202 F.3d at 136
(quoting Danzer, 151 F.3d at 56). "Even `stray remarks in the
workplace by persons who are not involved in the pertinent
decision making process . . . may suffice to present a prima
facie case,' provided those remarks evidence invidious
discrimination." Belgrave v. City of New York, 95 Civ. 1507,
1999 U.S. Dist. LEXIS 13622, at *89-90 (E.D.N.Y. Aug. 31, 1999)
(quoting Ostrowski, 968 F.2d at 182); see also Malarkey v.
Texaco, Inc., 983 F.2d 1204, 1210 (2d Cir. 1993) (holding that statements made by non-decisionmakers were properly received
"because they showed the pervasive corporate hostility towards
[plaintiff] and supported her claim that she did not receive a
promotion due to her employer's retaliatory animus"); Warren v.
Halstead Indus., Inc., 802 F.2d 746, 753 (4th Cir. 1986)
(holding that evidence of a "general atmosphere of
discrimination," harassment, or threats is "relevant to the
determinations of intent and pretext).
c. Same Actor Inference
The Second Circuit has also noted that "when the person who
made the decision to fire was the same person who made the
decision to hire, it is difficult to impute to her an invidious
motivation that would be inconsistent with the decision to hire."
Grady v. Affiliated Cent. Inc., 130 F.3d 553, 560 (2d Cir.
1997). This is especially the case "when the firing has occurred
only a short time after the hiring." Id.; see also Carlton
v. Mystic Trans., Inc., 202 F.3d 129, 138 (2d Cir. 2000) (where
an individual is discharged within a relatively short time after
his or her hiring, "there is a strong inference that
discrimination was not a motivating factor in the employment
decision"); Emanuel v. Oliver, Wyman Co., 85 F. Supp.2d 321,
334 (S.D.N.Y. 2000) ("no reasonable juror could conclude that
defendant fired plaintiff because he was a mere eleven months
older than when he was hired"); Coleman v. Prudential
Relocation, 97 F. Supp. 234, 241 (W.D.N.Y. 1997) (no age
discrimination where plaintiff hired at age 51 and discharged 14
months later). B. Application
I address plaintiffs' ADEA and state and city law claims
together because "[c]laims made pursuant to the New York State
Human Rights Law and the New York City Human Rights Law are
subject to the same analysis as claims brought pursuant to the
ADEA." Molin v. Permafiber Corp., 01 Civ. 9279, 2002 U.S. Dist.
LEXIS 23674, at *9 (S.D.N.Y. Dec. 9, 2002) (citing Cruz v. Coach
Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000)).
At the outset, I assume that plaintiffs have made out the prima
facie case required by McDonnell Douglas. Defendant has
articulated a legitimate, nondiscriminatory reason for
plaintiffs' termination, contending 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). Hence, I
proceed directly to the ultimate question of whether plaintiffs
have presented sufficient evidence from which a reasonable jury
could find discrimination. I do so by evaluating first
plaintiffs' evidence, then defendant's evidence, and finally the
record as a whole, keeping in mind the elusiveness of proof of
discrimination and the principle that the jury is "entitled to
view the evidence as a whole." Stern v. Trustees of Columbia
Univ., 131 F.3d 305, 314 (2d Cir. 1997); see also Siano v.
Haber, 40 F. Supp.2d 516, 520 (S.D.N.Y. 1999), aff'd mem.,
201 F.3d 432 (2d Cir. 1999); Lapsley, 999 F. Supp. at 515. 1. Plaintiffs' Evidence
Plaintiffs offer the following evidence in support of their age
First, when Schreiber asked Saul Fielder why he was not
permitted to join the Fielder group, Saul Fielder responded that
"David Fielder . . . and  Bruan had decided that they did not
want older people in the group," and "older persons do not have
the same energy level as younger persons" (Schreiber Decl. at ¶¶
Second, upon hearing of the conversation, Braun told Schreiber
that "it was true but that he would try to get [Schreiber] into
the group" (id. at ¶ 10);
Third, on one occasion 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
Fourth, on more than one occasion Brennan told Schreiber that
"trading was a young person[']s profession" (id. at ¶ 11);
Fifth, on more than one occasion Brennan commented to
Friedfertig that "when he was a trader he was young" (Friedfertig
Decl. at ¶ 8);
Sixth, in response to Friedfertig's question, "How am I doing?"
Brennan answered, "Pretty good except for your age" (Friedfertig
Dep. at 81); Seventh, when Friedfertig asked Beri-Walker why his
compensation was so low, she stated that "the company had to
offer more money to younger employees in order to attract them"
(id. at ¶ 12);
Eighth, plaintiffs were refused placement in the Fielder group
even though Worldco policy provides for mentoring by a senior
trader as part of its training program (see Kaiser Decl. Ex B,
(Worldco New Trader Training Program document providing that
"[a]ll traders will be assigned to a senior trader in the
section. The senior trader will guide you in trading the right
stocks, avoiding tricky specialist, answering questions you have
about trading, and watching your daily performance."); and
Ninth, "[t]he overwhelming majority (in excess of 90 percent)
of Worldco traders were in their 20s and 30s" (Pls.'s Mem. at 10
(relying on Kaiser Decl., Ex. F (document containing a list of
dates titled "Worldco LLC Proprietary Trader Birth Date as of
Feb. 24, 2003)).
2. Defendant's Evidence
Defendant offers the following evidence in support of its
motion for summary judgment:
First, plaintiffs were in the protected class at the time that
they were hired, specifically, they were fifty years old
(Schreiber Dep. at 71; Friedfertig Dep. at 43);
Second, plaintiffs did not have the prior work experience or
educational background usually expected by Worldco, but were
nevertheless offered trading positions with the company (see Krumholtz Aff. at ¶¶ 6, 8, 11; Bruan Dep. at 50-51 (Bruan
stated that he hired plaintiffs because he wanted "to do good by
two people . . . who had no money and no experience in the
industry . . . [a]nd the reason the firm could do that is because
the firm was very strong at the time"));
Third, the market declined precipitously in the nine months
between when plaintiffs were first offered positions and when
they actually began trading in early 2001, e.g., the NASDAQ
Composite dropped from 3,982 in June 2000 to 2,208 in late
February 2001, a decline of nearly 45%, and defendant allowed
plaintiffs to begin trading anyway (Krumholtz Aff. at ¶ 12);
Fourth, plaintiffs were provided with the same training as all
other new traders (Krumholtz Aff. at ¶ 14; Schreiber Dep. at
50-52 (acknowledging that he received an orientation and computer
training, and that training videos were available to Worldco
traders); Bruan Dep. at 62 (testifying that not every trader was
placed in a trading group));
Fifth, Schreiber received a raise in June 2001 (Schreiber Dep.
at 60-61 (acknowledging that in June 2001 Worldco increased the
number of shares he was permitted to purchase and the number or
positions he was allowed to have open, and that his ticket charge
was reduced and his compensation was raised from 55% to 80% of
the net profits on a trade));
Sixth, other traders were asked to contribute capital just as
Schreiber was in August 2001 (Krumholz aff. at ¶¶ 22, 23 (of the
67 traders who made capital contributions to Worldco between August and November 2001, 57 were under the age of 40; 16
made the contributions, like Schreiber, after they began trading;
7 traders that were asked to contribute capital were asked within
one week of the same request of Schreiber, and several of those
traders were younger than Schreiber and were asked to contribute
Seventh, the same person, Bruan, hired and discontinued
plaintiffs' association with Worldco (Schreiber Dep. at 28-29;
Friedfertig Dep. at 90; Krumholtz Aff. at ¶ 18 (stating that
Bruan was consulted in the decision to require Schreiber to make
a capital contribution));
Eighth, plaintiffs performed poorly as traders: During their
time with Worldco Schreiber incurred a net loss of $18,138.12 and
Friedfertig incurred a net loss of $8,665.14 (Schreiber Dep. at
73; Friedfertig Dep. at 90, 93); and
Ninth, Worldco was downsized in response to the downturn in the
economy (Krumholtz Aff. at ¶ 27 (stating that within a six-month
period from the time of plaintiffs' termination, 32 traders were
asked to leave due to either poor performance or because Worldco
was downsizing; 25 of the 32 traders let go were under the age of
3. The Record As a Whole
Considering the evidence as a whole, and resolving all
conflicts in the evidence and drawing all reasonable inferences
in plaintiffs' favor, I conclude that a reasonable jury could
find that plaintiffs' ages were a factor in their dismissal. Specifically, a reasonable jury could conclude that plaintiffs
were denied training under circumstances supporting an inference
of discrimination, and the denial of such training led to their
poor performance, which ultimately led to their dismissal.
a. Verbal Comments
I conclude that defendant's argument that the age-based
comments were stray remarks raises issues of fact for a jury to
resolve. For example, Beri-Walker, a human resources manager,
purportedly said to Schreiber just three months before the
termination of his employment that "to attract young college
graduates [Worldco] had to offer them more than [it had] to offer
older people." (Schreiber Dep. at 40). The comment was allegedly
made by someone in human resources just three months before
termination and explicitly referenced age in the context of a
discussion regarding compensation.
In addition, Saul Fielder told Schreiber that he and his father
did not want "older people" in their trading group. (Id. at
56-58). The comment was made by an important member of the group,
three or four months before Schreiber's disassociation from
Worldco, and explicitly referenced age, in the context of an
inquiry by Schreiber as to why he could not get into the Fielder
Group. Further, the next day Bruan allegedly confirmed to
Schreiber that it was true that the Fielders did not want older
individuals in their group. (Id. at 48-49). This confirmation
came from the individual primarily responsible for hiring and
discharging plaintiffs and explicitly referenced age, in the context of a complaint by Schreiber that he could not get into
his preferred trading group.
Considered individually, certain of the complained of comments,
such as those made by Brennan, arguably would be stray remarks.
Viewed collectively, however, a reasonable jury could conclude
that the remarks reflected a discriminatory atmosphere and,
consequently, constituted evidence of discrimination on the part
of Worldco. See Ostrowski, 968 F.2d at 182; Conway v.
Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987)
(evidence of discriminatory atmosphere may be relevant because it
tends "to add `color' to the employer's decisionmaking processes
and to the influences behind the actions taken with respect to
the individual plaintiff"). Accordingly, the weight accorded to
such remarks is a question for a jury to decide. See, e.g.,
Schug v. The Pyne-Davidson Co., 99 Civ. 1493, 2001 U.S. Dist.
LEXIS 21246, at *16 (D. Conn. Dec. 10, 2001) ("[L]ike any
remarks, [stray remarks] must be viewed in context, along with
the specific language used and the number of times the comments
A reasonable jury could surely find a nexus between the remarks
of Saul Fielder and Bruan and the employment decisions at issue.
See Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81,
91 (2d Cir. 1996) (an inference of discrimination may arise from
"actions or remarks made by decisionmakers that could be viewed
as reflecting a discriminatory animus"); see also Richards
v. Farner-Bocken Co., 145 F. Supp.2d 978, 996-97 (N.D. Ia.
2001) (discriminatory comments by management level employees "may suggest a pervasively age-discriminatory attitude to employment
decisions that a reasonable jury could find was also reflected in
the [discharge] at issue"). To the extent that Saul Fielder's
remarks could have been considered stray, such remarks were
arguably no longer so once Bruan confirmed that the Fiedlers did
not want older traders in their trading group. See Azar v. TGI
Friday's, Inc., 945 F. Supp. 485, 499 (E.D.N.Y. 1996)
(discriminatory comments not stray where they were made by
superior who advised decisionmaker on personnel matters related
to plaintiff). Because Bruan had authority over the decision to
terminate plaintiffs, his "it is true" comment serves as some
evidence of discrimination on the part of Worldco.
In sum, considering Brennan and Beri-Walker's remarks
collectively and in combination with the age-based comments by
Saul Fielder and Bruan, I conclude that a reasonable jury could
find that plaintiffs have met their burden of proving that
defendant's decision to terminate them was motivated, at least in
part, by their age.
b. Same Actor Inference
With respect to defendant's reliance on the same actor
inference, I find that the strength of this inference is diluted
by the issues of fact raised with respect to the Feilders'
age-based refusal to allow plaintiffs into their trading group,
and the impact that refusal may have had on Bruan's decision to
terminate plaintiffs. Thus, here, too, there are issues of fact
for a jury to resolve. c. Plaintiffs' Poor Performance as Traders
Although it is undisputed that plaintiff's performed poorly as
traders, plaintiffs' argument that defendant's refusal to train
them led to their poor performance, and defendant's response that
plaintiffs received the same training as other Worldco traders
also raises questions of fact for a jury to resolve. See Holtz
v. Rockefeller & Co., 258 F.3d 62, 78 (2d Cir. 2001)
(plaintiff's evidence that the promise to provide her with
training was made when she was hired, and that age was at least a
substantial part of the motivation for the denial of training was
sufficient to defeat summary judgment).
In sum, although plaintiffs' evidence is based almost entirely
on their own testimony, and defendant has presented strong
evidence to show that its actions were not discriminatory,
plaintiffs' age discrimination claims survive this motion for
summary judgment. See Viola v. Philips Med. Sys.,
42 F.3d 712, 716 (2d Cir. 1994) ("A grant of summary judgment is only
proper if the evidence of discriminatory intent is so slight that
no rational jury could find in plaintiff's favor.") (citation
omitted); Holtz, 258 F.3d at 78 (where plaintiff's testimony is
"the only evidence in the record ascribing discriminatory intent
to [defendant], and consists largely of her uncorroborated
accounts of what [the individual who hired her] said," the Second
Circuit "nonetheless conclude[d] that her statements raise[d] a
genuine issue of fact as to the defendant's intent"). Assuming,
as I must for purposes of this motion, that the age-based comments were made, I conclude that a reasonable jury could find
that plaintiffs were discriminated against on the basis of their
age. Hence, defendant's motion for summary judgment is denied.
For the reasons set forth above, defendant's motion for summary
judgment is denied. The parties shall appear for a pretrial
conference on August 13, 2004, at 10:30 a.m.