Walfish v. Northwestern Mutual Life Insurance Company et al

Filing 86

OPINION AND ORDER: For the foregoing reasons, the Parties' Motions for Summary Judgment are denied. The Clerk of the Court is respectfully requested to terminate the pending Motions. (Dkt. Nos. 48, 57.) The Court will hold a conference on April 24, 2019 at 3:00 p.m. to discuss the status of the case. SO ORDERED. (Status Conference set for 4/24/2019 at 03:00 PM before Judge Kenneth M. Karas.) (Signed by Judge Kenneth M. Karas on 3/28/2019) (jca)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

FRED WALFISH,
Plaintiff,
No. 16-CV-5534 (KMK)
v.
OPINION & ORDER
NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY;
NORTHWESTERN MUTUAL
INVESTMENT SERVICES, LLC; and
MATTHEW J. HOLLERAN,
Defendants.

Appearances:
Lucas Colin Buzzard, Esq.
Daniel Maimon Kirschenbaum, Esq.
Joseph & Kirshenbaum LLP
New York, NY
Counsel for Plaintiff
Christopher Alan Parlo, Esq.
Terry D. Johnson, Esq.
Sean Patrick Lynch, Esq.
Morgan Lewis & Bockius, LLP
New York, NY and Princeton, NJ
Counsel for Defendants
Primitivo Joseph Cruz, Esq.
White and Williams LLP
Philadelphia, PA
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Fred Walfish (“Plaintiff”) brings this Action against Northwestern Mutual Life Insurance
Company and Northwestern Mutual Investment Services (together, “NWM”), and Matthew

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Holleran (“Holleran”), a managing partner for NWM (collectively, “Defendants”), claiming
Defendants violated the New Jersey Law Against Discrimination (the “LAD”), N.J. Stat. Ann.
§ 10:5-12(l), when they terminated his contract with NWM on the basis of his age. (See
generally Stipulation Ex. A (“Am. Compl.”) (Dkt. No. 43).)
Before the Court are the Parties’ Cross-Motions for Summary Judgment. (See Defs.’
Not. of Mot. (Dkt. No. 48); Pl.’s Not. of Cross-Mot. (Dkt. No. 57).) For the following reasons,
both Motions are denied.
I. Background
A. Factual Background
The following facts are taken from the Parties’ respective statements pursuant to Local
Civil Rule 56.1 and the responses to those statements. (See Defs.’ Statement of Material Facts
Pursuant to Local Rule 56.1 (“Defs.’ 56.1”) (Dkt. No. 50); Pl.’s Statement of Material Facts
Pursuant to Local Rule 56.1 (“Pl.’s 56.1”) (Dkt. No. 64); Pl.’s Resp. to Defs.’ 56.1 (“Pl.’s 56.1
Resp.”) (Dkt. No. 62); Defs.’ Resp. to Pl.’s 56.1 (“Defs.’ 56.1 Resp.”) (Dkt. No. 78).) The facts
as described below are not in dispute except to the extent indicated.
1. Plaintiff’s History With NWM
NWM is a life insurance company headquartered in Milwaukee, Wisconsin, the core
business of which is underwriting, issuing, and servicing insurance policies and annuities.
(Defs.’ 56.1 ¶¶ 1–2.) Under its business model, NWM enters into independent contractor
arrangements with “General Agents” in different geographic areas, who operate local agencies,
contract with independent contractor insurance agents, and are authorized to solicit applications
for NWM products and services. (Id. ¶ 4.) The contracts between General Agents and their

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insurance agents provide that the insurance agents work as independent contractors, rather than
as employees of the General Agent or of NWM. (Id. ¶ 5.)
a. Plaintiff’s Contract
Plaintiff first entered into a contract with NWM in 1996 at the age of 45, and entered into
“superseding” contracts with NWM in 2009 and 2010 at the ages of 58 and 59. (Id. ¶¶ 6–7.)
From approximately 1999 to 2009, Plaintiff’s General Agent was John Blumburg (“Blumburg”).
(Pl.’s 56.1 ¶ 36.) In February 2010, Plaintiff entered into a “full-time agent’s contract” (the
“full-time contract”) with the Seery Financial Group LLC (“SFG”), a White Plains, New Yorkbased General Agency owned and operated by General Agent Robert Seery (“Seery”). (Defs.’
56.1 ¶ 8.)
NWM establishes minimum annual production requirements that full-time contract
agents must meet to maintain their contracts. (Pl.’s 56.1 ¶ 12; Defs.’ 56.1 Resp. ¶ 12; Defs.’
Decl. in Supp. of Mot. for Summ. J. (“Defs.’ Decl.”) Ex. J (“Handal Decl.”) ¶ 5 (Dkt. No. 51).)
If an agent fails to meet his or her minimum requirements, NWM in its discretion may terminate
the contract; however, NWM sometimes permits an agent to pay a fine in lieu of having his or
her contract terminated. (Defs.’ 56.1 Resp. ¶¶ 16–17; Pl.’s Decl. in Supp. of Mot. for Summ. J.,
Part 1 (“Pl.’s Decl. Pt. 1”) Ex. 1 (“Riedl Dep.”), at 28–29 (Dkt. No. 59).) 1 However, beginning
the year before an agent turns 65, the option to pay a fine for missed production targets is not

1

Defendants dispute Plaintiff’s assertion that an agent may pay a fine “in lieu of” having
his or her contract terminated. Instead, Defendants admit that “agents may be permitted to pay a
fine or assessment if they fail to satisfy their minimum production requirements depending upon
the circumstances and at the discretion of their Managing Partner, General Agent, District
Agent[,] or Field Director, as applicable, and if they do so their contract may or may not be
terminated.” (Defs.’ 56.1 Resp. ¶ 16.) Defendants do not specify under what circumstances an
agent might be asked to pay a fine and still have his or her contract terminated, and no cited
record evidence provides any examples of an agent paying a fine and having his or her contract
nonetheless terminated, or otherwise clarifies under what circumstances that might occur.
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available. (Pl.’s 56.1 ¶ 18; Pl.’s Decl. Pt. 1 Ex. 3 (“Pl.’s Seabolt Dep.”), at 61; Reidl Dep. 78;
Pl.’s Decl. Pt. 1 Ex. 2 (“Handal Dep.”), at 44–45.) 2
Plaintiff’s full-time contract included a termination provision which provided in relevant
part that the agreement “shall terminate upon the first to occur of” the death of the agent, the
termination of the existing contract between the General Agent and NWM, or the end of the
month in which the agent turns 65 years old. (Defs.’ 56.1 Resp. ¶ 6; Defs.’ Decl. Ex. P (“FullTime Contract”) ¶ 19; Seabolt Dep. 17 (“Q: Is it your understanding that a full-time contract with
an agent at Northwestern Mutual ends at the end of the month when the agent turns 65? A: I
believe so.”).) When an agent’s full-time contract ends, the agent may, at NWM’s discretion,
receive an amendment allowing the contract to extend beyond the date of expiration. (Pl.’s 56.1
¶ 9; Defs.’ 56.1 Resp. ¶ 9; Reidl Dep. 43–44.) Alternatively, the agent could enter into a “senior
contract,” pursuant to which the agent continues selling NWM products but is no longer required
to meet any minimum production requirements. (Pl.’s 56.1 ¶¶ 10, 19.) NWM’s Field
Compliance Manual describes the senior contract as “a transitional contract available to veteran
representatives who want to continue to write new business and receive commissions at the same
rates as before retirement but prefer not to have a minimum earnings requirement,” and as “a
way for experienced Northwestern Mutual Financial representatives to transition to retirement
while continuing to solicit and receive commissions.” (Pl.’s 56.1 ¶¶ 20–21; Pl.’s Decl. in Supp.
of Mot. for Summ. J., Part 2 (“Pl.’s Decl. Pt. 2”) Ex. 19 (“Senior Agent Status”) (filed under

2

Defendants deny this assertion. However, Plaintiff’s statement is supported by
deposition testimony of NWM employees. (See Seabolt Dep. 61 (“My understanding is if
[agents] fail minimum the year prior to turning 65 they are not eligible to pay the fine.”); Reidl
Dep. 78 (“If [Plaintiff] was coming up on 65, he wouldn’t be able to pay a fine and extend his
contract because he had failed minimum earnings.”); Handal Dep. 45 (noting that he was
informed Plaintiff “was not eligible to pay a fine because of his age” in the year before he turned
65).)
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seal) (Dkt. No. 60).) Agents on senior contract are “considered to be ‘retired’ for benefits
purposes” with respect to certain employee benefits; for example, they are not eligible for
disability coverage, and Medicare, rather than NWM’s medical plan, becomes their primary
health insurance provider. (Pl.’s 56.1 ¶¶ 25–28; Defs.’ 56.1 Resp. ¶ 28.) If an agent who reaches
age 65 has no active contract, has not received a contract extension, or has not entered into a
senior contract, the agent’s employee benefits will “default” to those of an agent on senior
contract “until such time as the benefits group receives confirmation that the agent has retired or
the agent’s existing Full-Time Agent’s Contract is being extended.” (Defs.’ 56.1 Resp. ¶ 23.)
b. Plaintiff’s Performance
Shortly after signing the full-time contract, Plaintiff objected when Seery modified an
existing expense allowance program within his agency; Plaintiff asserts that pursuant to an oral
contract with Blumburg, the prior General Agent, Plaintiff was entitled to a permanent expense
allowance of 18%, but under the modified program Seery limited the expense allowance to 4%.
(Defs.’ 56.1 ¶¶ 10–11.) Plaintiff filed a lawsuit in small claims court against Seery, NWM, and
the CEO of NWM. (Defs.’ 56.1 ¶ 12; Defs.’ Decl. Ex. O (“Small Claims Complaint”).)
Defendants assert, and Plaintiff denies, that after the lawsuit, Plaintiff “vowed to other agents
working in his office that he would not do anything ever again to help or benefit Mr. Seery or his
agency, including selling NWM products.” (Defs.’ 56.1 ¶ 13; Pl.’s 56.1 Resp. ¶ 13; Defs.’ Decl.
Ex. D (“Cenicola Dep.”), at 24–26; Seabolt Dep. 59–60.)
In December 2014, Seery’s General Agent contract with NWM was terminated. (Defs.’
56.1 ¶ 15.) In January 2015, Defendant Holleran assumed the duties of the Managing Partner of

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Plaintiff’s office, “inheriting [Plaintiff] as part of the agency he took over.” (Id. ¶ 16.) 3 Plaintiff
did not enter into a new contract after Seery’s relationship with NWM ended, but he continued to
solicit applications for and sell NWM products and receive commission from his sales. (Id.
¶ 17.) Holleran worked out of an office in Morristown, New Jersey, while Plaintiff worked out
of his home in New York and out of his Montvale, New Jersey office; as a result, Holleran and
Plaintiff only encountered each other two or three times between January 2015 and June 2016,
and spoke on the phone approximately three times. (Id. ¶ 18.)
In January 2015, Holleran “met with veteran agents in the office” to learn more about the
agency. (Id. ¶ 57.) Two agents, Anna Cenicola (“Cenicola”) and Joel Koral (“Koral”), affirmed
that they told Holleran that Plaintiff did not fit the culture of the agency, and that he was a
“cancer.” (See id. ¶ 60; Cenicola Dep. 21–22; Defs.’ Decl. Ex. I (“Koral Decl.”) ¶¶ 18–19.) 4

3

The Parties dispute whether the termination of Seery’s General Agent contract in 2014
ended Plaintiff’s formal contract in light of the termination provision of the full-time contract,
which provides that the contract ends upon “the termination of the existing contract between the
General Agent and NWM.” (Full-Time Contract ¶ 19; Defs.’ 56.1 Resp. ¶ 89.) Plaintiff asserts
that NWM “endorse[d]” his full-time contract with Seery and that he continued to perform
pursuant to his understanding that his contract had not been terminated. (Pl.’s 56.1 ¶ 89.) All
Parties rely on the terms of the full-time contract, particularly the minimum production
requirements, in their Motions, and deposition testimony suggests that both Plaintiff and NWM
had assumed Plaintiff’s contract was still in force. (See Handal Dep. 42–45 (explaining that
NWM considered “what the impact would be to [Plaintiff’s] contract” because of “[h]is failing of
contract minimums” for 2015); Reidl Dep. 78 (“If [Plaintiff] was coming up on 65, he wouldn’t
be able to pay a fine and extend his contract because he had failed minimum earnings.”); see also
Defs.’ 56.1 ¶ 45 (asserting that Plaintiff and Holleran had a discussion on January 20, 2016
“about [Plaintiff’s] contract status because [he] had missed his minimum production
requirements for 2015”).)
4

Plaintiff attributes Cenicola’s and Koral’s statements to separate personal disputes he
had with each of them, while Defendants maintain the agents’ opinions of Plaintiff are based on
difficulties Plaintiff caused when Cenicola and Koral were tasked with finding new office space
for the agency in 2013. (See Defs.’ 56.1 ¶¶ 60–63; Pl.’s 56.1 Resp. ¶¶ 62–63; Cenicola Dep. 13–
18; Koral Decl. ¶¶ 11–15; Decl. of Fred Walfish (“Walfish Decl.”) ¶¶ 29–32 (Dkt. No. 63).)
Some other agents who Plaintiff worked with described Plaintiff as having an “honest[] and
unique perspective,” saying he was “open and approachable” and “always had a pleasant
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These comments were relayed to Jason Handal (“Handal”), NWM’s Vice President of
Distribution Performance. (Defs.’ 56.1 ¶ 69; Pl.’s 56.1 ¶ 91.)
Additionally, Plaintiff had ongoing issues with regulatory compliance. (Defs.’ 56.1
¶ 73.) Plaintiff’s February 2012 annual review reflects several compliance deficiencies, and
notes that “[c]ertain activities could have consequences with the SEC, FINRA, State insurance
Commissions, Northwestern Mutual[,] and other bodies of authority in this industry.” (See
Defs.’ Decl. Ex. Y (“Compliance Reviews”), at 2–3 (noting that Plaintiff’s client files did not
contain “[d]etailed case notes,” and that his “letterhead, fax coversheet[,] and business cards are
outdated”).) 5 Plaintiff’s 2013 review, dated May 22, 2013, notes, “[a]s mentioned in your 2011
and 2012 compliance review follow up letter, your letterhead and business card stationary is still
outdated.” (Id. at 13.) In March 2016, Eileen Seabolt (“Seabolt”), the Director of Network
Office Supervision who “was charged with ensuring regulatory compliance in Mr. Holleran’s
agency,” (Defs.’ 56.1 ¶¶ 70, 72), performed an annual review of Plaintiff’s “business practices
and the Books and Records [he] maintain[s] to assess compliance with the firm’s policies and
procedures, as well as[] FINRA and MSRC Rules,” (see Defs.’ Decl. Ex. Z (“Mar. 24, 2016
Compliance Review”), at 2). 6 The review again found that Plaintiff was noncompliant with
policies regarding letterhead and business card language, and that he failed to create and

demeanor.” (Pl.’s 56.1 Resp. ¶ 65; Pl.’s Decl. Ex. 10 (“Greenblatt Decl.”) ¶ 4; Pl.’s Decl. Ex. 11
(“Schultz Decl.”) ¶¶ 5–6.) These agents also dispute Defendants’ assertion that Plaintiff created
problems when NWM was looking to move to a new office space, saying Plaintiff was actually
“of great assistance to the office as a whole.” (See Greenblatt Decl. ¶ 6; Schultz Decl. ¶ 7.)
5

Because the collection of Compliance Reviews are not consecutively-paginated, the
Court cites to the ECF-generated page numbers at the upper right corner of each page.
6

Because the March 24, 2016 Compliance Review does not include page numbers, the
Court cites to the ECF-generated page numbers at the upper right corner of each page.
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maintain client case files, emphasizing that these were “repeat deficienc[ies].” (Id. (emphasis
omitted).) 7
2. Plaintiff’s Minimum Production Requirements
Under the terms of Plaintiff’s full-time contract, he was required “to achieve a minimum
level of production each year,” and “his contract [could] be terminated for a failure to meet the
threshold.” (Handal Decl. ¶ 5; see also Pl.’s 56.1 Resp. ¶ 25.) Although Plaintiff, like all NWM
agents, was permitted to sell the insurance products offered by other companies, his full-time
contract provides that he “shall not do business for any other company” with respect to forms of
insurance policies or annuities that NWM offers, except for persons who are already insured by
NWM “or who have been found by [NWM] to be insurable only at higher than standard
premium rates which are unacceptable to the applicants. (Full-Time Contract ¶ 6; see also Pl.’s
56.1 ¶ 78; Defs.’ 56.1 Resp. ¶ 78.) In 2012 and 2013, Plaintiff met his production requirements.
(Defs.’ 56.1 ¶ 28; Defs.’ Decl. Ex. C (“Walfish Dep.”), at 623–26.) In 2014, Plaintiff also met
his production requirements. (Defs.’ 56.1 ¶ 30.) 8 Only 21% of the revenue generated by

7

Plaintiff concedes that his reviews note compliance deficiencies, but maintains that
“best practices are not mandatory requirements that Plaintiff was required to follow,” and that
once he was “informed that best practices had become requirements, he changed his practice to
comply with those requirements.” (Pl.’s 56.1 Resp. ¶¶ 81–82.)
8

Defendants assert that he met the 2014 minimum production requirement “only by
selling himself and his son insurance policies in December 2014, just before the books closed”;
Plaintiff concedes that this is how he met the 2014 single-year production requirement, but that
Defendants’ proffered evidentiary support “contains nothing about whether Plaintiff had met”
the alternative two-year minimum production requirement, which provides that an agent can
meet his or her production requirement based on combined commissions over two years. (Defs.’
56.1 ¶ 30 (emphasis omitted); Pl.’s 56.1 Resp. ¶ 30; see also Defs.’ Decl. Ex. R (“NWM
Minimum Earnings Chart”).) In any event, there is no dispute that Plaintiff met his production
requirements for 2014 under the full-time contract.
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Plaintiff’s sales in 2014 came from selling NWM products, while the remaining 79% of his sales
came from 17 other insurance companies for which he sold products. (Id. ¶ 39.)
In 2015, Plaintiff’s production minimum required him to generate at least $39,600 in
commissions from new sales of NWM life insurance products, or a minimum of $130,600 in
total commissions from the sale of all NWM products for the years 2014 and 2015 combined.
(Id. ¶ 26; Defs.’ Decl. Ex. R (“NWM Minimum Earnings Chart”).) Plaintiff failed to meet his
minimum production requirement in 2015, or for the combined years 2014 and 2015; this was
the first time Plaintiff missed his minimum production requirement in his 20-year career with
NWM. (Defs.’ 56.1 ¶¶ 32–34, Pl.’s 56.1 ¶ 95.) However, Plaintiff generated $226,217 in total
sales of other companies’ insurance products in 2015, and sales of NWM products made up only
18.6% of his total sales for the year; Plaintiff asserts that his compensation from NWM, which
totaled $58,204.63 in 2015, was nonetheless “more compensation than he earned from any other
company whose insurance he sold that year.” (Defs.’ 56.1 ¶ 38; Pl.’s 56.1 ¶ 38 (emphasis
omitted); Defs.’ Decl. Ex. T (“Dec. 2015 NWM Commission Statement”).) Plaintiff also asserts,
and Defendants dispute, that his 2015 sales were lower than prior years because he was
“incapacitated for three months in the summer of 2015 for medical reasons.” (Pl.’s 56.1 ¶ 96;
Defs.’ 56.1 Resp. ¶ 96.) Throughout 2015, Plaintiff received several notices informing him that
he was in danger of failing to meet the minimum production requirements, and warning him that
if he does not meet his production requirement by the end of the year, his contract can be
terminated. (Defs.’ 56.1 ¶ 42; Defs.’ Decl. Ex. U (“Warning Notices”).)
On January 20, 2016, Plaintiff had a telephone call with Holleran, which Plaintiff
recorded, in which they discussed Plaintiff’s failure to meet his minimum production
requirements, and whether it would impact his contractual relationship with NWM. (Defs.’ 56.1

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¶¶ 43–44; see generally Defs.’ Decl. Ex. V (“Jan. 20 Call Tr.”).) 9 The Parties dispute the focus
of the conversation. Defendants state that the discussion was focused on Plaintiff’s “contract
status . . . because [Plaintiff] had missed his earnings requirements.” (Defs.’ 56.1 ¶ 45.) Plaintiff
asserts that he arranged the call to request “an exception to stay on [the] regular [full-time]
contract after age 65.” (Pl.’s 56.1 Resp. ¶ 45; Jan. 20 Call Tr. 18; Defs.’ Decl. Ex. G (“Holleran
Dep.”), at 10 (“Q: Is it your understanding that Mr. Walfish was having this conversation with
you, at least in part, because he was concerned as to his contract status with Northwestern after
his regular contract ends at age 65? A. Yes.”).) The call transcript also reflects a disagreement
between Holleran and Plaintiff with respect to the purpose of the call. (See Jan. 20 Call Tr. 12–
13 (“Fred Walfish: We’re having this conversation because I turn 65 in March. Matt Holleran:
Correct. Fred Walfish: That’s—that’s all, I turn 65— . . . Matt Holleran: No, we’re having . . .
we’re having this conversation because you failed minimums last year, Fred.”).)
The transcript reflects that on the call, Plaintiff acknowledged that he missed his
production minimums for 2015, but that he sought to continue on his full-time contract, rather
than “go on senior contract” as one “normally” would at age 65. (See Jan. 20 Call Tr. 2–3 (“Fred
Walfish: . . . I turn 65 in March . . . [a]nd normally I would go on senior contract. Matt Holleran:
Yep. Fred Walfish: I would appreciate being able to hold off for one year on that.”).) Holleran
denied Plaintiff’s request to remain on full-time contract, and Plaintiff asked if that meant he
would be going on senior contract when he turns 65; Holleran responded, “I’m not saying that

9

Defendants submitted a transcription of the January 20, 2016 phone call between
Holleran and Plaintiff. Plaintiff has not challenged the accuracy of the transcription, and the
Parties rely on it in their submissions. The Court will therefore consider the call transcription in
deciding the Parties’ Motions. See Capobianco v. City of New York, 422 F.3d 47, 55 (S.D.N.Y.
2005) (“[I]nadmissible [evidence] may be considered by the court if not challenged. The
objection must be timely or it will be deemed to have been waived.” (citation and quotation
marks omitted)).
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that would be an option.” (Id. at 5.) Plaintiff said that he was of the understanding that senior
contract is an option “offered to every single agent, that when you hit 65, you go on senior
contract and there are no more production requirements”; Holleran responded that senior contract
“does not have to be granted,” and is at the discretion of the managing partner. (Id. at 5–6.)
Throughout the call, Holleran repeatedly asked Plaintiff to submit an email or letter explaining
“what it is that you want to do or what you’re going to do differently” with respect to his
production numbers and his impact on office culture. (Id. at 7–8, 10, 14, 19, 25, 31, 33, 47–48.)
Plaintiff responded that he was committed to his performance at NWM, but emphasized that
because of his age, he wanted to go on senior contract so that he could continue servicing his
clients without having to pursue new sales to meet production requirements. (See id. at 7 (“[M]y
plan is to wind down, take it easy, kick back, I’m 65, continue to service my clients . . . . That’s
the whole reason you have a senior contract without—without production requirements.”); see
also id. at 21–22, 26–27, 42–44.) Holleran ended the call by suggesting that Plaintiff submit a
written plan “outlining how [Plaintiff] intended to increase his sales and/or otherwise be a
productive member of the agency.” (Defs.’ 56.1 ¶ 52; Jan. 20 Call Tr. 47 (“Fred, I would really
encourage you . . . if you really want to maintain contract status with Northwestern Mutual, I
would take some time, I would sit down, and I would write out, you know, what you are going to
do in your practice, what you can commit to . . . .”).)
Two days after the call, Plaintiff submitted a letter to Holleran as requested. (See Defs.’
Decl. Ex. X (“Jan. 22 Letter”).) Plaintiff emphasized that he is “focused [and] . . . committed to
servicing his clients,” but that he was “not looking to . . . focus on increased production,” which

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is his motivation “for securing the [s]enior [c]ontract.” (Jan. 22 Letter 36.) 10 Plaintiff’s letter
also explained that his understanding of NWM policy was that “if an agent over the age of 60
missed his minimums he was offered early access to the [s]enior [c]ontract and secondly, upon
reaching 65 he automatically transitioned unless a specific exception was made to continue with
the full time contract.” (Id.) Plaintiff emphasized that it was “simply incomprehensible” that he
would be denied a senior contract that “had been promised” when he joined NWM “simply
because ‘in your 64th year you missed your minimums.’” (Id. at 37.)
3. Termination of Plaintiff’s Contract
On January 20, 2016, Holleran “conveyed to Ms. Seabolt his preliminary
recommendation that [Plaintiff’s] affiliation with NWM be terminated.” (Defs.’ 56.1 ¶ 89;
Defs.’ Decl. Ex. BB (“Jan. 22, 2016 Email”).) 11 On January 21, 2016, Handal expressed in an
email that he hopes Plaintiff “will see senior status (or the fine) as viable options, provided we
are ok with that.” (Defs.’ Decl. Ex. AA (“Jan. 21, 2016 Email”).) However, Handal testified
that at some point, “someone inform[ed] [him] that [Plaintiff] was not eligible to pay a fine
because of his age,” and confirmed that because of Plaintiff’s age “that option was essentially off
the table.” (Handal Dep. 45.) On January 22, 2016, after Plaintiff submitted his letter to
Holleran, Holleran emailed Seabolt that they should “move forward now” with terminating
Plaintiff’s contract. (Defs.’ 56.1 ¶ 91; Jan. 22, 2016 Email.) In a January 25, 2016 email,
Handal noted that Seabolt was “concerned” about offering Plaintiff a senior contract. (See Defs.’

10

Because the January 22 Letter does not include page numbers, the Court cites to the
ECF-generated page numbers at the upper right corner of each page.
11

Defendants assert, and Plaintiff concedes, that Holleran first conveyed his preliminary
recommendation that Plaintiff’s contract be terminated on January 20, 2016, (see Pl.’s 56.1 Resp.
¶ 89), although the email Defendants cite in support of this statement appears to have been sent
on January 22, 2016.
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Decl. Ex. CC (“Jan. 25, 2016 Email”).) Holleran testified that during the decision-making
process, Handal encouraged him to “slow down” and “not rush th[e] decision” to terminate
Plaintiff’s contract. (Holleran Dep. 29.)
In the ensuing months, Holleran, Seabolt, and Handal had a number of discussions
regarding NWM’s contractual relationship with Plaintiff; the Parties dispute whether these
discussions focused on whether to renew Plaintiff’s contract after it ended automatically when he
turned 65, (see Pl.’s 56.1 ¶ 107; Handal Dep. 44 (“Q. Were you aware that [Plaintiff] was
approaching his 65th birthday . . . [a]nd in that case his full-time contract would just end, were
you aware of that? A. Yes.”), or whether to terminate NWM’s working relationship with
Plaintiff due to his failure to meet minimum production requirements, (Defs.’ 56.1 Resp. ¶ 107,
Handal Dep. 70–71 (“I don’t believe the turning 65 was the issue that was governing the decision
to terminate the contract. . . . [W]e were not focused on the mechanics of the contract in these
conversations.”)).
On May 10, 2016, Holleran met with Plaintiff and gave him written notice that “his
affiliation with NWM would be terminated 30 days later, on June 10, 2016.” (Defs.’ 56.1 ¶ 95;
Defs.’ Decl. Ex. DD (“Termination Notice”).) The termination notice states, “[p]ursuant to the
provisions of the contract between us, the contract is hereby terminated 30 days from today’s
date.” (Termination Notice.) Defendants note, and Plaintiff concedes, that Plaintiff believed that
he remained on a full-time contract beyond his 65th birthday. (Pl.’s 56.1 Resp. ¶ 96; Walfish
Dep. 639, 644, 647–51.) However, Handal testified that when Plaintiff received his termination
notice, the contract had in fact ended “simply as a matter of fact because of [Plaintiff] having
turned 65 shortly before,” and that the termination notice was provided simply to “document the
understanding of the parties” even though Plaintiff’s contract was already “over” when he

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received it. (Handal Dep. 64–65, 71; see also id. at 70 (noting that Plaintiff’s contract “ended on
its own when he turned 65”).) Plaintiff’s “status for benefits purposes” defaulted to “senior
agent” on April 1, 2016 pursuant to the expiration of his contract. (Defs.’ 56.1 Resp. ¶ 124.)
In addition to Plaintiff, eight other agents who failed to satisfy their 2015 production
minimums were terminated in 2016, each of whom were younger than Plaintiff, ranging in age
from 25 to 64. (Defs.’ 56.1 ¶¶ 97–98.) Some agents who missed their minimum production
requirement for 2015 were allowed to pay the fine and remain on contract. (Pl.’s 56.1 Resp.
¶ 97; Pl.’s Decl. Pt. 2 Ex. 20 (“Agent Status Chart”).)
B. Procedural Background
Plaintiff filed his original Complaint on July 12, 2016, (Compl. (Dkt. No. 1)), and
Defendants filed their answers on September 16, 2016, (Dkt. Nos. 20, 21). After engaging in
mediation, (see Dkt. (entries for Apr. 28, 2017, and June 20, 2017)), the Parties filed a joint
Stipulation on March 5, 2018 agreeing to dismiss all claims with prejudice except for Plaintiff’s
claim of age discrimination under § 10:5-12(l) of the LAD, and attaching an Amended
Complaint, (see Stipulation 1; Am. Compl.). The Stipulation also provided that the Parties
agreed to cross-move for summary judgment on the remaining claim in the Amended Complaint,
without further discovery and without requiring Defendants to file answers. (Stipulation 1.)
Finally, the Stipulation provided that the Parties agree Plaintiff was not an “employee” of
Defendants for purposes of this litigation. (Id. at 2.)
On March 14, 2018, Defendants filed their Motion for Summary Judgment and
accompanying papers. (See Defs.’ Mot.; Defs.’ 56.1; Defs.’ Decl.; Defs.’ Mem. of Law in Supp.
of Mot. for Summ. J. (“Defs.’ Mem.”) (Dkt. No. 49).) Plaintiff filed his Cross-Motion for
Summary Judgment and response to Defendants’ Motion on April 12, 2018. (Pl.’s Mot.; Pl.’s

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56.1; Pl.’s 56.1 Resp.; Pl.’s Decl. Pts. 1 & 2; Walfish Decl.; Pl.’s Mem. in Supp. of Mot. for
Summ. J. (“Pl.’s Mem.”) (Dkt. No. 61).) Defendants filed a reply and accompanying papers on
April 27, 2018. (Defs.’ 56.1 Resp.; Defs.’ Reply in Further Supp. of Mot. for Summ. J. (“Defs.’
Reply”) (Dkt. No. 73); Reply Aff. of Sean P. Lynch, Esq. (“Defs.’ Reply Aff.”) (Dkt. No. 74);
Defs.’ Reply Decl. in Further Supp. of Mot. for Summ. J. (“Defs.’ Reply Decl.”) (Dkt. No. 79).)
Plaintiff filed a reply on May 4, 2018. (Dkt. No 77.) Plaintiff’s reply did not conform with the
Court’s directives, and Plaintiff was ordered to file a five page, double-spaced reply and
withdraw the noncompliant submission. (Dkt. No. 82.) Plaintiff complied on May 11, 2018.
(Pl.’s Reply in Further Supp. of Mot. for Summ. J. (“Pl.’s Reply”) (Dkt. No. 83).)
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.
2014) (same). “In determining whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the non-moving party and . . . resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (quotation marks omitted); see also Borough of Upper Saddle River
v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014) (same). “It is the
movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
“However, when the burden of proof at trial would fall on the nonmoving party, it
ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an

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essential element of the nonmovant’s claim,” in which case “the nonmoving party must come
forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to
avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114,
123 (2d Cir. 2013) (alteration and quotation marks omitted). Further, “[t]o survive a [summary
judgment] motion . . . , [a nonmovant] need[s] to create more than a ‘metaphysical’ possibility
that his allegations were correct; he need[s] to ‘come forward with specific facts showing that
there is a genuine issue for trial,’” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012)
(emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)), “and cannot rely on the mere allegations or denials contained in the pleadings,”
Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014) (quotation marks
omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for
summary judgment is properly supported by documents or other evidentiary materials, the party
opposing summary judgment may not merely rest on the allegations or denials of his pleading
. . . .”). Indeed, “[w]hile summary judgment must be granted with caution in employment
discrimination actions, . . . a plaintiff must prove more than conclusory allegations of
discrimination to defeat a motion for summary judgment.” Aspilaire v. Wyeth Pharm., Inc., 612
F. Supp. 2d 289, 302 (S.D.N.Y. 2009) (citations and quotation marks omitted); see also Schiano
v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir. 2006) (“[I]t is the law of this Circuit that
summary judgment remains available for the dismissal of discrimination claims in cases lacking
genuine issues of material fact, and may be appropriate even in the fact-intensive context of
discrimination cases.” (citations and quotation marks omitted)).
“On a motion for summary judgment, a fact is material if it might affect the outcome of
the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental

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Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks omitted). At this stage, “[t]he role
of the court is not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.” Brod, 653 F.3d at 164 (quotation marks omitted). Thus, a court’s goal should
be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr
Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quotation marks omitted) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986)). However, a court should consider only evidence that
would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d
736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits . . . to establish facts, the
statements ‘must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant . . . is competent to testify on the matters stated.’” DiStiso v.
Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4)).
B. Plaintiff’s LAD Claim
The Parties have dismissed all claims in this Action by stipulation except for Plaintiff’s
claim of age discrimination in violation of the LAD, N.J. Stat. Ann. § 10:5-12(l). (See
Stipulation; Am. Compl. ¶¶ 18–21.) Both Parties move for summary judgment on the remaining
claim. Defendants argue that Plaintiff has “presented no direct evidence” that his contract was
terminated because of his age, and that he cannot meet his burden under the three-step burdenshifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973),
to establish a prima facie case of unlawful age discrimination, or demonstrate that Defendants’
proffered reason for terminating Plaintiff’s contract was pretextual. (Defs.’ Mem. 12–13.)
Plaintiff argues that the contract itself, which by its terms expired at the end of the month in
which Plaintiff reached 65 years of age, “is direct evidence that [Defendants] ha[ve] relied on an
‘explicit classification based on age,’” and that the McDonnell Douglas framework is therefore

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inapplicable. (Pl.’s Mem. 18 (quoting Epter v. N.Y.C. Transit Auth., 127 F. Supp. 2d 384, 387
(E.D.N.Y. 2001)).) 12 Plaintiff also asserts that even if the Court finds the McDonnell Douglas
analysis applies, Defendants “cannot overcome the factual issues present on the record that
support a jury finding of pretext.” (Id. at 26.)
1. Applicable Law
Section 10:5-12(l) of the LAD provides that “[i]t shall be an unlawful employment
practice . . . [f]or any person to refuse to . . . contract with . . . or otherwise do business with any
other person on the basis of . . . age.” N.J. Stat. Ann. § 10:5-12(l). Section 10:5-12(l) has been
construed as “prohibit[ing] refusals to do business with independent contractors based on age,”
J.T.’s Tire Serv., Inc. v. United Rentals N. Am., Inc., 985 A.2d 211, 240 (N.J. App. Div. 2010)
(collecting cases), as well as “discriminatory terminations of contracts,” id. (citation omitted).
“In a case alleging age discrimination under the LAD, [a plaintiff] must show that the prohibited
consideration, age, played a role in the decision making process and that it had a determinative
influence on the outcome of that process.” Bergen Commercial Bank v. Sisler, 157 N.J. 188, 207
(1999) (citation, alteration, and quotation marks omitted). “[T]he LAD draws significantly from
federal anti-discrimination law. Thus, [a plaintiff’s] LAD claim is appropriately analyzed by
examination of federal cases arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq., and the Age Discrimination in Employment Act (‘ADEA’), 29 U.S.C. § 621, et
seq., provisions of which were modeled after Title VII.” Wright v. L-3 Commc’ns Corp., 227 F.
Supp. 2d 293, 297 (D.N.J. 2002) (citations omitted).

12

Because Plaintiff failed to include page numbers in his Memorandum, the Court cites
to the ECF-generated page number in the upper right corner of each page.
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A plaintiff may establish a violation of § 10:5-12(l) “by either direct or circumstantial
evidence.” See Sisler, 157 N.J. at 208; see also Buchholz v. Victor Printing, Inc., 877 F. Supp.
2d 180, 185–87 (D.N.J. 2012) (describing analyses for direct and circumstantial evidence of
discrimination). “[I]n order to establish [a] direct evidence age discrimination claim under the
LAD, [a plaintiff] has a ‘rigorous burden’ to demonstrate ‘that age, per se, was a substantial
factor in an adverse employment decision.’” Geltzer v. Virtua W. Jersey Health Sys., 804 F.
Supp. 2d 241, 250 (D.N.J. 2011) (quoting Sisler, 157 N.J. at 207); see also Tyler v. Bethlehem
Steel Corp., 958 F.2d 1176, 1181 (2d Cir. 1992) (“Should the plaintiff wish to prove his case as a
‘mixed-motives’ case, he must focus his proof directly at the question of discrimination and
prove that an illegitimate factor had a ‘motivating’ or ‘substantial’ role in the employment
decision.” (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 248 (1989) (plurality));
Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1260 (D.N.J. 1994) (explaining that
direct evidence is required to establish a “mixed motives case,” in which a plaintiff “must
demonstrate that discrimination was a motivating factor in an employment decision” (citing
Price Waterhouse, 490 U.S. at 277) (O’Connor, J., concurring)), aff’d, 67 F.3d 291 (3d Cir.
1995). “The evidence produced must, if true, demonstrate not only a hostility toward members
of the employee’s class, but also a direct causal connection between that hostility and the
challenged employment decision.” Buchholz, 877 F. Supp. 2d at 185 (citation omitted); see also
Sisler, 157 N.J. at 208 (same). “Direct evidence is ‘evidence, which if believed, proves the
existence of the fact in issue without inference or presumption.’” E.E.O.C. v. MCI Int’l, Inc.,
829 F. Supp. 1438, 1447 (D.N.J. 1993) (alterations omitted) (quoting Black’s Law Dictionary
460 (6th ed. 1990)). “Where an employee is able to satisfy this rigorous burden and establish a
direct prima facie case that age, per se, was a substantial factor in an adverse employment

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decision, the burden then shifts to the employer to show it would have made the same decision
even in the absence of the impermissible consideration.” Sisler, 157 N.J. at 209 (citing Price
Waterhouse, 490 U.S. at 248); see also Skidmore v. Virtua Health Inc., No. 11-CV-503, 2012
WL 2369357, at *5 (D.N.J. June 21, 2012) (“Where an employee has direct evidence of
discrimination, but the employer has also presented evidence that it would have terminated the
employee even in the absence of any discrimination, the ‘mixed-motive’ theory applies. Under
that theory, when an employee produces evidence that an employer placed substantial reliance on
a proscribed discriminatory factor in making the adverse employment decision, the burden of
persuasion shifts to the employer to prove that even if it had not considered the proscribed factor,
the employment action would have occurred.” (citing Dorfman v. Pine Hill Bd. of Educ., 346 F.
App’x 825, 829 (3d Cir. 2009))). 13
“If a plaintiff is unable to make out a claim for age discrimination using direct evidence,
he may instead rely on circumstantial evidence under the McDonnell Douglas burden-shifting
analysis.” Buchholz, 877 F. Supp. 2d at 187 (citation omitted); see also Smith v. City of
Allentown, 589 F.3d 684, 691 (3d Cir. 2009) (applying McDonnell Douglas to age discrimination
claims); Wright, 227 F. Supp. 2d at 297 (“The Supreme Court of New Jersey has adopted the
three-stage inquiry set forth by the United States Supreme Court in McDonnell Douglas . . . ‘as a
starting point’ in analyzing claims under the LAD.” (quoting Sisler, 157 N.J. at 200)).
Under McDonnell Douglas, the plaintiff bears the burden of proof and the initial
burden of production, having to demonstrate a prima facie case of discrimination
by showing first, that the plaintiff is forty years of age or older; second, that the
defendant took an adverse employment action against the plaintiff; third, that the
plaintiff was qualified for the position in question; and fourth, that the plaintiff was
13

Although otherwise analytically similar to federal age discrimination claims under the
ADEA, “the ‘but-for’ ADEA causation standard has not yet been adopted for direct evidence
NJLAD claims.” Buchholz, 877 F. Supp. 2d at 185 n.5 (citations omitted); see also Bertolotti v.
AutoZone, Inc., 132 F. Supp. 3d 590, 598 n.3 (D.N.J. 2015) (collecting cases).
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ultimately replaced by another employee who was sufficiently younger to support
an inference of discriminatory animus. Once the plaintiff satisfies these elements,
the burden of production shifts to the employer to identify a legitimate nondiscriminatory reason for the adverse employment action. If the employer does so,
the burden of production returns to the plaintiff to demonstrate that the employer’s
proffered rationale was a pretext for age discrimination. At all times, however, the
burden of persuasion rests with the plaintiff.
Smith, 589 F.3d at 689–90 (citations omitted). To prove a prima facie case under the LAD,
Plaintiff must demonstrate by a preponderance of the evidence that he: “(1) was a member of the
protected class, i.e., was over 40, (2) was qualified for the position, (3) suffered an adverse
employment decision, and (4) ultimately was replaced by a person sufficiently younger to permit
an inference of age discrimination.” Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 300 (3d Cir.
2004) (citation omitted). “In cases where the position held by the discharged employee was
eliminated, or the discharged employee was not replaced, he or she must prove that a younger
employee was either retained or treated more favorably.” Pepe v. Rival Co., 85 F. Supp. 2d 349,
365 (D.N.J. 1999), aff’d, 254 F.3d 1078 (3d Cir. 2001). If Defendants then “identify a legitimate
non-discriminatory reason for the adverse employment action,” Smith, 589 F.3d at 690, Plaintiff
must “prove by a preponderance of the evidence that [the] proffered reason was a pretext for
discrimination,” Rich v. Verizon N.J. Inc., No. 16-CV-1895, 2017 WL 6314110, at *18 (D.N.J.
Dec. 11, 2017). “At the summary judgment stage, an employee may meet his or her burden of
demonstrating pretext ‘by providing evidence that would allow a fact finder reasonably to
(1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not the motivating or determinative cause of the
employer’s action.’” Id. (quoting Sarullo v. U.S. Postal Serv., 352 F.3d 789, 800 (3d Cir. 2003)).
“In discrimination cases where state of mind is at issue, [courts should] grant . . . summary
judgment in favor of an employer sparingly because ‘careful scrutiny of the factual allegations

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may reveal circumstantial evidence to support the required inference of discrimination.’”
Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003).
2. Analysis
Plaintiff argues that the expiration term in the contract, which provided that the contract
would expire at the end of the month in which Plaintiff turned 65, constitutes direct evidence of
age discrimination. (Pl.’s Mem. 18–19.) Defendants argue, relying on Harrington v. AetnaBearing Company, 921 F.2d 717 (7th Cir. 1991), that an expiration term in a contract based on
age is not per se discrimination, and that Plaintiff therefore must establish a prima facie case of
age discrimination under the McDonnell Douglas framework. (Defs.’ Mem. 19–21.)
a. Direct Evidence
“A plaintiff attempting to prove such discrimination by direct evidence will survive a
motion for summary judgment by producing evidence ‘which if believed, proves [the] existence
of a fact in issue without inference or presumption.’” Harth v. Daler–Rowney USA Ltd., No. 09CV-5332, 2012 WL 893095, at *2 (D.N.J. Mar. 15, 2012) (quoting Sisler, 157 N.J. at 208).
Direct evidence warranting a “mixed-motives” analysis includes “conduct or statements by
persons involved in the decisionmaking process that may be viewed as directly reflecting the
alleged discriminatory attitude.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir.
1997); see also Jordan v. City of Gary, 396 F.3d 825, 832 (7th Cir. 2005) (noting that direct
evidence “essentially requires an admission by the decision-maker that his actions were based on
the prohibited animus”). “This kind of evidence, coupled with a firing . . . of a person in the
protected age group, would support a finding that the firing was based on an impermissible
criterion such as age.” Park v. Seoul Broad. Sys. Co., No. 05-CV-8956, 2008 WL 619034, at *9
n.15 (S.D.N.Y. Mar. 6, 2008) (citing Stanojev v. Ebasco Servs., Inc., 643 F.2d 914, 921 (2d Cir.

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1981)); see also Lightfoot, 110 F.3d at 913 (finding the plaintiff “produced sufficient [direct]
evidence to earn a mixed-motive [jury] instruction” where the supervisor defendant had
“expressed surprise and disbelief when [the plaintiff] said he wanted to work until he was
seventy years old” and the plaintiff was terminated at age 56). “[I]f [a plaintiff] shows by direct
evidence that there is a genuine issue of fact as to whether age was a determinative factor in [his]
discharge, summary judgment is inappropriate.” Maidenbaum, 870 F. Supp. at 1262 (citations
omitted).
Few courts have addressed an express age-based expiration clause in a contract. In
Harrington, the Seventh Circuit ruled that an expiration clause predicated on a plaintiff turning
any age protected by the ADEA was not per se age discrimination, reasoning that there was no
“practical difference between fixing a term of years and fixing the date at which the contract
expires, and we see no magic in the fact that the date here was a birthday.” 921 F.2d at 720. In
Harrington, the court noted that in terminating the plaintiff’s employment, the defendant had not
“made a judgment that [the plaintiff] was too old,” but rather ended his employment “because the
contract had a definite term and the term had ended.” Id. Similarly, in Gadsby v. Norwalk
Furniture Corporation, No. 93-CV-420, 1994 WL 411724 (N.D. Ill. 1994), the court granted a
defendant’s motion for summary judgment in an age discrimination case where the plaintiff
relied on an age-based expiration clause but failed to rebut the defendant’s evidence that it had
“never enforced the mandatory termination provision in such a contract,” concluding that “[t]he
mere presence of such a term in a contract, without an actual adverse employment action taken
on the basis of age, is not age discrimination.” Id. at *4. 14 However, in Dahman v. Embassy of

14

Notably, in both cases the expiration clause was triggered when the plaintiff reached
the age of 70, an age that was not protected by the ADEA at the time the contracts were
executed. See id. (noting that “the mandatory retirement at 70 provision in [the plaintiff]’s
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Qatar, No. 17-CV-2628, 2018 WL 3597660 (D.D.C. July 26, 2018), vacated on other grounds,
2019 WL 330185 (D.D.C. Jan. 25, 2019), the court found a plaintiff had a meritorious claim
under the ADEA where the plaintiff’s contract automatically expired when the plaintiff reached
the age of 64; however, the plaintiff there also received a termination letter that stated he was
being terminated “solely” because he was “reaching his retirement age.” Id. at *8 (alteration
omitted). From this limited caselaw, Plaintiff can prevail if he can prove that the refusal to
extend his contract or place him on a senior contract was made on the basis of Plaintiff reaching
the age of 65, rather than for other, permissible reasons.
The Parties dispute whether Plaintiff was in fact terminated pursuant to the expiration
clause. Defendants argue that the decision not to continue Plaintiff’s contract or offer him a
senior contract was made in January 2016, two months before he turned 65, and was made on the
basis of his failure to meet his production requirement the previous year, as well as his reputation
in the office and longstanding noncompliance with regulatory rules. (See Defs. Mem. 20–21.)
In support of their argument, Defendants note that NWM had a longstanding policy to
automatically offer a 65-year-old agent a senior contract upon expiration of his or her full-time
contract, and that NWM also frequently agrees to extend full-time contracts beyond an agent’s
65th birthday, thereby demonstrating that Plaintiff’s age was not the reason NWM chose not to
do so here. (Id. at 22–23.) However, Plaintiff points to Handal’s testimony, in which he
confirms that Plaintiff’s contract ended automatically on April 1, 2016 as a result of the
expiration clause, although he denies that the decision not to extend or renew it was based on
Plaintiff’s age. (See Pl.’s 56.1 ¶¶ 123–24; Handal Dep. 70–71.) Furthermore, several NWM

contract was not illegal when the contract was made, as the ADEA did not cover individuals over
70 until 1986”).
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employees testified that Plaintiff was not eligible for the option of paying the fine in lieu of
contract termination when he missed his 2015 minimum production requirements because of his
age, (see Seabolt Dep. 61; Reidl Dep. 78; Handal Dep. 45), which, viewing all evidence in the
light most favorable to Plaintiff with respect to Defendants’ Motion, arguably contributed to the
decision to terminate Plaintiff’s contractual relationship with NWM. Courts have found that
where a contract provision or policy denies a benefit, or adds a job requirement, on the basis of
age, the provision is discriminatory on its face. See Epter, 127 F. Supp. 2d at 387–88 (holding
that a blanket policy requiring employees over the age of 40 to submit to an electrocardiogram
test violated the ADEA, making the McDonnell-Douglas framework “wholly inapplicable”);
Smilan v. United Airlines, Inc., 796 F. Supp. 723, 727 (E.D.N.Y. 1992) (finding pilots’ collective
bargaining agreement facially discriminatory where contract entitled all pilots to a paid move
when assigned to a new location unless the pilot was within two years of “normal retirement,”
defined as age 60). Additionally, the Court notes that, although the claim at issue here is not a
forced retirement claim, but rather a claim for termination of a contract on the basis of age, there
is no reason the rationale for barring employers from maintaining a forced retirement age, see
Johnson v. State of N.Y., 49 F.3d 75, 79 (2d Cir. 1995) (holding “termination policy that facially
discriminates on the basis of age” violates the ADEA), should not also apply under LAD, which
is otherwise analogous to the ADEA, see Wright, 227 F. Supp. 2d at 297, but, unlike the ADEA,
protects independent contractors. Compare J.T.’s Tire Serv., 985 A.2d at 214 (finding that
§ 10.5-12(l) has been construed as “prohibit[ing] refusals to do business with independent
contractors based on age,”), with Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 509
(2d Cir. 1994) (“The ADEA does not cover independent contractors.”); see also Rubin v.

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Chilton, 819 A.2d 22, 25 (N.J. App. Div. 2003) (“There is no federal statute analogous
to [§ 10:5–12(l)].”).
The facially age-based termination provision, together with Handal’s testimony and the
age-based policy under which agents aged 64 and over are ineligible to pay a fine to retain their
contract, serves as direct evidence that can “support a finding that the [contract termination] was
based on an impermissible criterion such as age.” Park, 2008 WL 619034, at *9 n.15; see also
Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989) (finding a plaintiff
was entitled to a mixed motives jury instruction where the plaintiff’s “direct evidence, if
believed, clearly showed that age played at least some part in [the defendant’s] decisional
process” to terminate the plaintiff). The Court therefore applies the “mixed motives” framework,
pursuant to which “the burden [now] shifts to the employer to show it would have made the same
decision even in the absence of the impermissible consideration.” Sisler, 157 N.J. at 209 (citing
Price Waterhouse, 490 U.S. at 248).
b. Mixed Motives Analysis
Defendants argue that the evidence overwhelmingly demonstrates that Plaintiff’s
contractual relationship with NWM would have been terminated even absent this consideration.
Defendants point to the fact that, by Plaintiff’s own admission, Defendants have a longstanding
policy of allowing almost all agents to either receive a senior contract or continue their full-time
contract by agreement upon reaching the age of 65, and so their decision not to extend these
options to Plaintiff could not be based on his age. (See Defs.’ Mem. 13–18; see also Call Tr. 9
(“I’m just asking for what is the normal retirement track, which is at age 65, you go on senior
contract.”), 13 (“At age 65 it’s mandatory senior contract unless you get an exception from the
senior partner to continue.”), 18 (“I’ve talked to the home office about what my options are . . .

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and the plan is to almost everybody, they automatically transition to senior contract except for
the ones that stay on full-time contract with the managing partner exception permission
granted.”), 28 (“Every single agent who went before me went on senior contract without a
hiccup.”), 33 (listing his options upon reaching 65 as “be assigned to a senior contract, fully
retire, [or] remain on the contract if meeting earnings requirements”); see also Cenicola Dep. 32–
33 (noting that Holleran “gave [her] the senior contract, and I had turned age 66, actually, when I
got my senior contract”).) Defendants also note that NWM severed contractual ties with eight
other agents based on failure to meet production minimums, and that they were all younger than
Plaintiff, varying in age from 25 to 64 years old. (See Holleran Dep. 49–53 (discussing other
agents whose contracts were terminated in early February 2016 for failure to meet production
minimums in 2015); see also Defs.’ Decl. Ex. EE (“Agent Chart”).) Defendants also cite
deposition testimony and other evidence supporting their argument that the decision to cut ties
with Plaintiff was based on considerations other than his age. (See Cenicola Dep. 22 (describing
Plaintiff as a “cancer” and that he “did not fit the culture of the agency”); id. at 24–26, 46–50
(testifying that Plaintiff intentionally stopped trying to sell NWM products); Call Tr. 7–8, 10, 14,
19, 25 (emphasizing the importance of Plaintiff improving production and otherwise contributing
to company culture); Seabolt Dep. 35–38 (describing Plaintiff’s longstanding regulatory
noncompliance); Defs.’ Decl. Ex. H (“Holleran Decl.”) ¶ 14 (listing reasons for recommending
that NWM sever ties with Plaintiff).) With respect to Plaintiff’s Motion, construing all facts in
favor of Defendants, this evidence is sufficient to create at least a dispute of fact regarding
whether Defendants would have ended Plaintiff’s contractual relationship even without the agebased expiration clause. See Tranello v. Frey, 758 F. Supp. 841, 851 (W.D.N.Y. 1991) (“The
defendants’ motivation and claimed legitimate reason for the dismissal raise genuine issues of

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material fact which may not be resolved on [a summary judgment] motion.”), aff’d in part,
dismissed in part, 962 F.2d 244 (2d Cir. 1992); Johnston v. Am. Vision Ctr., No. 86-CV-2504,
1990 WL 130004, at *12 (E.D.N.Y. Aug. 27, 1990) (denying the plaintiff’s motion for summary
judgment on state law age discrimination claim where “[g]enuine issues of material fact remain
as to whether [the] defendant’s proffered reasons for discharging [the plaintiff] were
legitimate”). Plaintiff’s Motion for Summary Judgment must therefore be denied.
With respect to Defendants’ Motion, and therefore construing all evidence in Plaintiff’s
favor, although Defendants have produced evidence that there may have been permissible
reasons to discontinue their contractual relationship with Plaintiff, there is also evidence from
which a jury could infer that Plaintiff would not have been terminated absent consideration of his
age. In opposing Defendants’ Motion, Plaintiff cites Holleran’s testimony in which he says that
Handal encouraged him to consider having Plaintiff “pay[] the fine,” an established discretionary
exception to the production minimums, rather than ending his contractual relationship. (Holleran
Dep. 61–62.) Handal testified that during his conversations “about what to do with [Plaintiff’s]
contract, he was “inform[ed] . . . that [Plaintiff] was not eligible to pay a fine because of his age.”
(Handal Dep. 45.) Handal then confirmed that he understood “that option was essentially off the
table.” (Id.) Other deposition testimony cited by Plaintiff also confirms that there was a policy
at NWM of not offering the fine option to those approaching age 65. (See Seabolt Dep. 61 (“My
understanding is if [agents] fail minimum the year prior to turning 65 they are not eligible to pay
the fine.”); Reidl Dep. 78 (“If [Plaintiff] was coming up on 65, he wouldn’t be able to pay a fine
and extend his contract because he had failed minimum earnings.”); Handal Dep. 45 (noting that
he was informed Plaintiff “was not eligible to pay a fine because of his age” in the year before he
turned 65).)

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Construing all facts in the light most favorable to Plaintiff, a reasonable jury could find
that Plaintiff’s ineligibility for the fine exception, which was based on his age, resulted in the
termination of Plaintiff’s contractual relationship with Defendants, and that he would have been
treated differently were it not for consideration of his age. Put another way, a jury could find
that had Plaintiff been younger, and therefore eligible to pay a fine the year that he did not meet
his production minimum, NWM may have chosen that option, rather than ending Plaintiff’s
contract. See Grant, 880 F.2d at 1569 (finding district court erred in failing to give a mixed
motives instruction where the plaintiff’s “direct evidence, if believed, clearly showed that age
played at least some part in [the defendant’s] decisional process” to terminate the plaintiff); Jezek
v. Medco Health Sols., Inc., No. 10-CV-4410, 2012 WL 209372, at *7 (D.N.J. Jan. 24, 2012)
(denying summary judgment for the defendants on retaliation claim under Price Waterhouse
analysis where the defendant produced evidence that it “made the final decision not to hire [the
plaintiff] because he did not have experience handling complex accounts and because [an
employment reference] provided negative feedback on [the plaintiff’s] job performance,” finding
that “[t]his is . . . a factual question for a jury”); see also Scheu v. Charter Commc’ns, Inc., No.
08-CV-2835, 2009 WL 10672161, at *12 n.59 (C.D. Cal. Mar. 2, 2009) (“The fact that [the
plaintiff] may have been terminated for legitimate as well as retaliatory reasons does not require
entry of summary judgment in [the defendant’s] favor.”).
Furthermore, courts have denied summary judgment where defendants’ proffered
permissible reasons for ending an employment relationship included relatively minor or isolated
performance issues that the employer had previously “overlooked or tolerated” until the
prohibited consideration became relevant. See Brewer v. Quaker State Oil Ref. Corp., 72 F.3d
326, 333 (3d Cir. 1995). Defendants cite Plaintiff’s failure to meet his production minimums in

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2015, his longstanding compliance issues, and his negative impact on company culture as part of
the reason for terminating his contract. (Defs.’ Mem. 13–15.) Yet Defendants themselves assert
that Plaintiff’s noncompliance with regulatory standards went on “for years” with no adverse
actions taken. (Id. at 14.) Plaintiff’s impact on office culture is in dispute, as the Parties have
provided conflicting statements and deposition testimony from Plaintiff’s co-workers regarding
his behavior in the office. (See Defs.’ 56.1 ¶ 69; Cenicola Dep. 21–22; Koral Decl. ¶¶ 17–19;
Pl.’s 56.1 Resp. ¶ 65; Greenblatt Decl. ¶¶ 4, 6; Schultz Decl. ¶¶ 5–7.) Additionally, although
Plaintiff did fail to meet his minimum production requirements in 2015, he met his production
requirements every year prior to that for 20 years, and was well on his way to meeting his
production requirements for 2016 when he was terminated. (See Walfish Decl. ¶ 37; Pl.’s 56.1
¶¶ 95, 97–98.) Viewing all circumstances and drawing all inferences in Plaintiff’s favor, a jury
could reasonably infer that if Plaintiff were younger, and therefore not at the end of his contract
and ineligible to pay a fine to remain on contract, Defendants may have handled his first failure
to meet production minimums in his 20-year career differently. See Lawrence v. Nat’l
Westminster Bank N.J., 98 F.3d 61, 66 (3d Cir. 1996) (finding dispute of fact in age
discrimination claim where the defendants contended the plaintiff was fired for “poor job
performance” and his performance review been “falling below standards” in performance and
behavior categories, but depositions of employees contradicted that assessment); Brewer, 72 F.3d
at 330–32 (reversing grant of summary judgment on ADEA claim where the plaintiff had
“documented continuous performance problems,” but the plaintiff’s “own testimony disputed the
significance of the problems raised” and the deficiencies “pale beside his consistently good sales
performance,” because “a reasonable factfinder could view [the defendant’s] belated reliance on
these criticisms as evidence that tends to show pretext”); Levin v. Analysis & Tech., Inc., 960

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F.2d 314, 315–17 (2d Cir. 1992) (finding employer’s claim that the plaintiff was terminated
because of “dissatisf[action] with his work” and his “attitude problems” did not provide a basis
for summary judgment where there was evidence that plaintiff’s “irascible nature had for many
years been accepted by his co-workers and superiors”).
Therefore, Defendant’s Motion for Summary Judgment is also denied. See Rodriguez v.
Vill. Green Realty, Inc., 788 F.3d 31, 49 (2d Cir. 2015) (“This Court has consistently held where
subjective issues regarding a litigant’s state of mind are squarely implicated, summary judgment
would appear to be inappropriate and a trial indispensable.” (citation and alterations omitted)); In
re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009) (“Summary judgment is inappropriate when the
admissible materials produced in opposition to the summary judgment motion make it arguable
that the claim has merit.” (citation and quotation marks omitted)); Ramseur v. Chase Manhattan
Bank, 865 F.2d 460, 465 (2d Cir. 1989) (“[The Second Circuit] ha[s] repeatedly noted that
summary judgment is ordinarily inappropriate where an individual’s intent and state of mind are
implicated.” (citation and quotation marks omitted)); EEOC v. United Health Programs of Am.,
Inc., 213 F. Supp. 3d 377, 398 (E.D.N.Y. 2016) (“This [c]ourt has consistently held where
subjective issues regarding a litigant’s state of mind, motive, sincerity or conscience are squarely
implicated, summary judgment would appear to be inappropriate and a trial indispensable.”
(citation omitted)); Johnston, 1990 WL 130004, at *12 (“The Second Circuit has warned that
summary judgment is generally inappropriate on the issue of intent where discrimination is
alleged. . . . Different factfinders could draw different inferences as to the parties’ credibility and
could reach different conclusions after trial.” (citing Montana v. First Fed. Sav. & Loan Ass’n,
869 F.2d 100, 103 (2d Cir. 1989))).

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c. Aiding and Abetting
Plaintiff brings his LAD claim against both NWM and Holleran. Defendants argue that
under LAD § 10:5-12(e), an individual “who, by definition, is not an employer under the LAD,”
(Defs.’ Mem. 23), may only be held liable for aiding and abetting a primary violation, see N.J.
Stat. Ann. § 10:5-12(e) (making it unlawful for “any person, whether an employer or an
employee or not, to aid, abet, incite, compel[,] or coerce the doing of any of the acts forbidden
under this act, or to attempt to do so”). However, Plaintiff’s claim arises under § 10:5-12(l),
which makes it unlawful for “any person to . . . contract with . . . or otherwise do business with
any person on the basis of . . . age.” N.J. Stat. Ann. § 10:5-12(l) (emphasis added). This
language directly contrasts with § 10:5-12(a), which by its terms only makes it unlawful “[f]or an
employer” to discriminate on the basis of a protected characteristic. N.J. Stat. Ann. § 10:5-12(a)
(emphasis added). Because “there are few cases construing this section of the LAD,” J.T.’s Tire
Serv., Inc, 985 A.2d at 214, it is not clear whether liability under subsection (l) is limited to
employers.
In any event, Defendants’ argument that Holleran cannot be individually liable for aiding
and abetting because it was his decision to “cut ties with” Plaintiff and “an individual cannot aid
and abet his own conduct” is contrary to caselaw interpreting the LAD. “[C]ourts construe the
aiding and abetting theory [under the LAD] broadly, such that an individual supervisor can aid
and abet his own conduct.” O’Toole v. Tofutti Brands, Inc., 203 F. Supp. 3d 458, 467 (D.N.J.
2016); see also DeSantis v. N.J. Transit, 103 F. Supp. 3d 583, 591 (D.N.J. 2015) (“New Jersey
courts have held that an individual can aid and abet, not only the conduct of another person, but
that person’s own conduct.”); Mann v. Estate of Meyers, 61 F. Supp. 3d 508, 529–30 (D.N.J.
2014) (concluding that a supervisor was a proper party under the LAD because “an individual

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can be held liable under the aiding and abetting provision even where the individual performed
the acts of discrimination himself”). Defendants cite Newsome v. Administrative Office of
Courts, 103 F. Supp. 2d 807 (D.N.J. 2000), for the proposition that an individual cannot aid and
abet his own discriminatory conduct under the LAD. Id. at 823 (“[T]he alleged principal
wrongdoer[] cannot aid and abet his own wrongful conduct.”). Although Defendants correctly
cite Newsome’s holding, subsequent courts interpreting the LAD have clarified that individuals
can indeed aid and abet their own conduct, and have attributed cases holding otherwise to “the
court’s misreading of [Hurley v. Atlantic City Police Dep’t, 174 F.3d 95 (3d Cir. 1999)] in
Newsome.” Marino v. Westfield Bd. of Educ., No. 16-CV-361, 2016 WL 2901706, at *10
(D.N.J. May 18, 2016). Hurley in fact held that, although “a somewhat awkward theory of
liability,” an individual can be liable “for aiding and abetting the actionable conduct of his
employer[] when the challenged conduct is failing to stop the supervisor’s own [discriminatory
conduct].” Hurley, 174 F.3d at 126; see also Fado v. Kimber Mfg., Inc., No. 11-CV-4772, 2016
WL 3912852, at *8 (D.N.J. July 18, 2016) (“[C]ourts in this district have held that a supervisor
can be personally liable for his own conduct under the aiding and abetting provision of the
LAD.” (citation omitted)); Marino, 2016 WL 2901706, at *9 (“[T]he Third Circuit has held that
a supervisor may be held personally liable for aiding or abetting her own discriminatory
conduct.” (citing Hurley, 174 F.3d at 127)); Danna v. Truevance Mgmt., Inc., No. 05-CV-5395,
2007 WL 2156361, at *3 (D.N.J. July 25, 2007) (rejecting the defendants’ argument based on
Newsome, and finding that “the Third Circuit [has] recognized ‘a somewhat awkward theory of
liability’ under which a supervisor may be found liable for his own” discriminatory conduct
under LAD). Therefore, because, as Defendants assert, Holleran was “the principal decisionmaker” who “decided to cut ties with [Plaintiff] and recommended that action NWM,” he may be

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held liable under the LAD. (Defs.’ Mem. 24.) See Marino, 2016 WL 2901706, at *10 (denying
motion to dismiss LAD claims as to individual defendants where the defendants “admit that
[they] were responsible for [the plaintiff’s] allegedly unlawful termination”).
Defendants also argue that Holleran is entitled to summary judgment even if Plaintiff can
state a viable claim against NWM because aiding and abetting requires “intentional acts of
discrimination by the accused individual.” (Defs.’ Mem. 25 (citation and quotation marks
omitted).) To hold an individual person liable under an aiding and abetting theory,
a plaintiff must show that (1) the party whom the defendant aids must perform a
wrongful act that causes an injury; (2) the defendant must be generally aware of his
role as part of an overall illegal or tortious activity at the time that he provides the
assistance; and (3) the defendant must knowingly and substantially assist the
principal violation.
O'Toole, 203 F. Supp. 3d at 467 (quoting Tarr v. Ciasulli, 181 N.J. 70, 84 (2004)). Defendants
assert that Plaintiff cannot establish liability under this test because “there is no evidence that . . .
Holleran engaged in any acts of intentional discrimination,” citing his deposition testimony in
which he explained that his recommendation to terminate was based on performance
considerations. (Defs.’ Mem. 25; see also Holleran Dep. 63.) However, as the Court has already
explained, disputed issues of fact remain with respect to whether Plaintiff’s age was a substantial
factor in the decision to end his contractual relationship with NWM, and Defendants concede
that Holleran made the recommendation to “cut ties” with Plaintiff. (Defs.’ Mem. 24.)
Holleran’s January 20, 2016 phone call with Plaintiff also reflects his awareness that Plaintiff’s
contract would expire upon his reaching age 65; a jury could reasonably infer that, viewing the
evidence as a whole, Holleran’s decision to end NWM’s contractual relationship with Plaintiff
was made in part based on the fact that Plaintiff’s contract was ending, and that he declined to

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consider the fine payment option because Plaintiff was ineligible due to his age. Therefore,
Defendants' Motion for Summary Judgment with respect to Holleran is denied.
III. Conclusion
For the foregoing reasons, the Parties' Motions for Summary Judgment are denied. The
Clerk of the Court is respectfully requested to terminate the pending Motions. (Dkt. Nos. 48,
57.) The Court will hold a conference on April 24, 2019 at 3 :00 p.m. to discuss the status of the

case.
SO ORDERED.
DATED:

Marc~ 2019
White Plains, New York

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