In Gregorian v. New York Life Insurance Company, No. 2019-10749, 34349/05, 2022 N.Y. Slip Op. 06917, 2022 WL 17480742 (N.Y.A.D. 2 Dept., Dec. 07, 2022), the court reversed the lower court’s summary judgment dismissal.
From the decision:
Here, the Supreme Court properly determined that Gregorian set forth a prima facie case of age discrimination (see Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL–CIO, 6 N.Y.3d 265, 271, 811 N.Y.S.2d 633, 844 N.E.2d 1155; Grella v. St. Francis Hosp., 149 A.D.3d 1046, 1048, 53 N.Y.S.3d 330). The defendant proffered a legitimate, nondiscriminatory reason for the termination of Gregorian’s employment, namely, that Gregorian failed to meet performance expectations related to leadership and growth of the Brooklyn office. The defendant demonstrated a progression of performance warnings wherein Gregorian was placed on, and kept on, final notice and given requirements to meet to avoid termination of his employment. The defendant also submitted evidence that Gregorian’s position was offered to older employees, who declined, prior to being offered to the younger replacement. The defendant’s submissions demonstrated, prima facie, the absence of triable issues of fact as to whether the stated reason for the termination of Gregorian’s employment was a pretext for age discrimination and whether discrimination was one of the motivating factors for the decision (see Hudson v. Merrill Lynch & Co., Inc., 138 A.D.3d 511, 515–516, 31 N.Y.S.3d 3; Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 46, 936 N.Y.S.2d 112).
However, in opposition, Gregorian raised triable issues of fact sufficient to defeat summary judgment under both the NYSHRL and the NYCHRL (see Lefort v. Kingsbrook Jewish Med. Ctr., 203 A.D.3d 708, 164 N.Y.S.3d 183). Gregorian submitted evidence that he met all of the requirements in his final warning letter, except a 2.5 “GPA” score, but was purportedly terminated for reasons unrelated to that unmet requirement. Further, contrary to the defendant’s contention, the testimony and evidence introduced in a similar federal action (hereinafter the Morgan action), involving a claim of age discrimination in the discharge of a managing partner in the South Central Zone, is relevant and admissible in this action.
Contrary to the appellant’s contention, in the Morgan action, the discussion by the United States District Court for the Northern District of Ohio of the evidence introduced before the jury, in denying the defendant’s motions for judgment as a matter of law and for a new trial, is not entitled to collateral estoppel effect, as Gregorian failed to establish that the District Court decided issues identical to those raised by the causes of action under review (see BT Holdings, LLC v. Village of Chester, 189 A.D.3d 754, 759, 137 N.Y.S.3d 458; M. Kaminsky & M. Friedberger v. Wilson, 150 A.D.3d 1094, 1096, 52 N.Y.S.3d 636). However, the deposition and trial testimony given by the defendant’s employees in the Morgan action may be used as evidence against the defendant in this action, both for impeachment purposes and as direct evidence (see CPLR 3117[a][1], [2]; 4517[a][2]; Feldsberg v. Nitschke, 49 N.Y.2d 636, 642, 427 N.Y.S.2d 751, 404 N.E.2d 1293; Sherwood v. Otto Jazz, Inc., 142 A.D.3d 1160, 1161, 38 N.Y.S.3d 67). That testimony raised a triable issue of fact as to the involvement of the Agency Department in the decision to terminate Gregorian’s employment and that of other managing partners in the general offices. As a result, the allegedly ageist comments of Agency Department executives, and the evidence produced in the Morgan action of disparate treatment of younger and older managing partners in the South Central Zone, are relevant to Gregorian’s allegations. Contrary to the defendant’s contention, the allegedly ageist comments were not stray comments or too remote in time from the termination of Gregorian’s employment to have probative value (cf. Grella v. St. Francis Hosp., 149 A.D.3d at 1049, 53 N.Y.S.3d 330; Godbolt v. Verizon N.Y. Inc., 115 A.D.3d 493, 494, 981 N.Y.S.2d 694). Rather, they were made by executives in numerous performance evaluations and memoranda close in time to the period when Gregorian was on final notice and thereafter discharged (see Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 [6th Cir.]).
This evidence, viewed in the light most favorable to Gregorian (see Crosbie v. KBC Food Corp., 190 A.D.3d 684, 685, 135 N.Y.S.3d 897), together with an adverse inference related to unproduced performance evaluations from the Northeastern Zone and other spoliated documents (see Gregorian v. New York Life Ins. Co., ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 WL 17480738 [Appellate Division Docket No. 2018–01374; decided herewith]), raised triable issues of fact as to whether the defendant’s stated reason for the termination of Gregorian’s employment was a pretext for age discrimination and whether age discrimination was one of the motivating factors for the decision to terminate his employment.
Based on this, the court held that the lower court should have denied the defendant’s motion for summary judgment dismissing plaintiff’s state and city law claims.