Motion-Secondary: Hovsep Gregorian v. New York Life Insurance Company

On July 18, 2006 a Motion-Secondary was filed involving a dispute between Hovsep Gregorian, and New York Life Insurance Company, for Torts - Other (Statutory) in the District Court of Kings County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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HOVSEP GREGORIAN, Index No: 34349/05

Plaintiff,

-against-

NEW YORK LIFE INSURANCE COMPANY,

Defendant.
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AFFIRMATION OF STEVEN SOULIOS IN OPPOSITION TO MOTION IN LIMINE TO
PRECLUDE EVIDENCE RELATED TO A PATTERN OF DISCRIMINATION, RAJ
BAKSHI, AND SPOLIATION OF EVIDENCE BY DEFENDANT, AND IN SUPPORT OF
CROSS MOTION FOR AN ORDER (I) GRANTING AN ADVERSE INFERENCE
CHARGE TO THE JURY, (II) RESOLVING CERTAIN FACTUAL ISSUES AND (III)
PRECLUDING DEFENDANT FROM OFFERING EVIDENCE AT TRIAL ALL DUE TO
DEFENDANT’S SPOLIATION OF CRITICALLY RELEVANT EVIDENCE

RUTA SOULIOS & STRATIS LLP
Attorneys for Plaintiff
211 East 43rd Street, 24th Floor
New York, New York 10017
(212) 997-4500

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STEVEN A. SOULIOS, an attorney and counselor at law, duly admitted to practice law

before the Courts of the State of New York, as attorney for plaintiff herein, affirms the following

to be true under the penalties of perjury.

1. I am the attorney for the Plaintiff, Hovsep Gregorian, also known as Joseph

Gregorian (“Gregorian” or “Plaintiff”) in the above captioned matter and, as such, am fully familiar

with the facts and circumstances herein. I submit this affirmation in Opposition to Defendant’s

Motion In Limine to Preclude Evidence Related to a Pattern Of Discrimination, Raj Bakshi, and

Spoliation of Evidence by Defendant, and in Support of Plaintiff’s Cross Motion for an Order (i)

Granting an Adverse Inference Charge to the Jury, (ii) Resolving Certain Factual Issues and (iii)

Precluding Defendant from Offering Evidence at trial all Due to Defendant’s Spoliation of

Critically Relevant Evidence pursuant to the common law doctrine of spoliation of evidence and

CPLR §3126. Plaintiff seeks entry of an order:

(i) granting Plaintiff an adverse inference charge at trial due to Defendant’s spoliation
of critically relevant evidence that it was ordered to produce; and

(ii) determining that, as a matter of fact for trial,Paul Morris and Philip Hildebrand
were materially involved in the decisions to discipline and discharge Gregorian;
and

(iii) precluding the Defendant from offering any evidence at trial that Mark Pfaff or
Jonathan Jaramillo, in their respective capacities as Zone Senior Vice-President,
had the authority to discipline and terminate a managing partner without the express
approval of the Head of the Agency Department (i.e. Hildebrand and Morris); and

(iv) precluding the Defendant from offering any evidence at trial that Mark Pfaff,
exclusively and without the involvement or approval of Hildebrand and Morris,
terminated Gregorian’s employment; and

(v) precluding the Defendant from offering any evidence at trial adverse to Gregorian
during the years 2000, 2001, 2002, and 2004; and

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(vi) precluding the Defendant from offering any evidence at trial favorable to Raj
Bakshi during the years 2000 – 2004, and 2006; and

(vii) admitting into evidence at trial here the evidence admitted at trial in the Morgan
Case that pertained to disparate treatment between younger and older managing
partners, or evidence of age discrimination generally;

(viii) denying Defendant’s motion in limine;

(ix) awarding costs, including attorneys’ fees incurred in connection with the spoliation
of evidence; and such other relief as the Court deems just and proper.

(i) precluding Morris from testifying that his decision to terminated Tommy Morgan
was an aberration brought on by “personal problems” that Brad Willson was
allegedly facing.

PRELIMINARY STATEMENT

The conduct by the Defendant, New York Life Insurance Company, the largest

mutual life insurance company in the United States – with over $38 billion in annual revenues and

$521 billion in assets under management – throughout this case has been so pervasively and

profoundly obstructive, contumacious, dishonest and in bad faith that it has not only irreparably

harmed and precluded the Plaintiff from proving his multi-million dollar age discrimination claim,

but it threatens the very integrity of this Court and the New York legal system as a whole. It is the

type of socially repugnant and reprehensible conduct and abuse of the judicial system that the New

York Court of Appeals has said constitutes “a wrong against the institutions set up to protect and

safeguard the public.”1 As set forth in the Expert Report of Professor Mark Killingsworth, Ph.D.,

Gregorian’s economic and statutory damages alone exceed $10.3 million.2 See Exhibit 1 to the

Affirmation of Steven Soulios (“Soulios Aff.”) submitted herewith.

1 See CDR Creances S.A.S. v. Cohen, 23 N.Y.3d 307 (2014).
2 Under the New York New York City Human Rights Law Gregorian can also recover non-economic
damages (i.e. emotional distress, mental anguish, pain and suffering), punitive damages, attorneys’ fees and
litigation costs, which, based on the outrageous and malicious conduct here, will run into the tens of
millions.

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As set forth herein and the exhibits hereto, the Defendant willfully and in bad faith

obstructed and evaded disclosure, disobeyed discovery orders (and other Court orders expressly

directing the production of specified documents) and utterly frustrated the disclosure process. The

substantial record before the Court conclusively establishes that once the Defendant was found

liable for malicious age discrimination in a contemporaneously filed case brought in the United

States District Court for the Northern District of Ohio (Tommy Morgan v. New York Insurance

Company, 507 F.Supp.2d 808 (N.D. Ohio 2007)3, resulting in a $16 million jury verdict (including

$10 million in punitive damages), plus attorneys’ fees (hereafter the “Morgan Case” or “Morgan”)

- wherein a damning and irrefutable record of New York Life’s age based discriminatory practices

was established and held up on appeal - they made a calculated decision in this case to utterly

thwart the Plaintiff from obtaining the evidence necessary to prove his claims here. That plan

included the following disingenuous, unethical, fraudulent and obstructive tactics:

(1) a willful and contumacious refusal to produce documents and answer
interrogatories in response to multiple discovery requests, including a
willful refusal to comply with and a contemptuous disregard of orders of
this Court compelling disclosure, and the intentional spoliation of critical
evidence; and

(2) refusing to produce material witnesses and otherwise filing frivolous
motions for protective orders and to quash subpoenas; and

(3) after being compelled by the Court, producing witnesses who committed
perjury in order to fabricate a knowingly baseless and frivolous defense.

In sum, every aspect where Plaintiff had a right to discover and gather evidence has

been systematically and intentionally shut down by the Defendant. The Defendant’s duplicitous

throughout this 15 year case was premised upon one fundamental, basic and persistent lie, namely,

that Paul Morris, the Senior Vice-President of the Agency Group, and Phillip Hildebrand, the

3 A copy of the Morgan decision is attached to the Soulios Aff. as Exhibit 2.

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Executive Vice-President, had “absolutely no involvement” in the decision to terminate

Gregorian. See Statement of Facts (“SOF”), at ¶89 The reason for Defendant’s perpetration of this

bald-faced lie is simple and clear. Paul Morris was an unabashed age bigot who authored

innumerable discriminatory statements while ascending to very top of New York Life’s upper

management, ultimately running the Company’s entire U.S. life insurance and annuity businesses

(and being responsible for NY Life’s 10,000 agents) during the time Gregorian was disciplined

and discharged from his employment. Morris’ written statements provided some of the most

powerful and compelling evidence to support the $16 million verdict for malicious age

discrimination in the Tommy Morgan Case. Hildebrand, as Morris’s superior, had actual

knowledge of, and ratified and approved, Morris’s bigoted statements and practices. Indeed

Morris’ promotion to the Senior Vice-President in Charge of Agency was not only recommended

and approved by Hildebrand – after Morris authored innumerable age based discriminatory

statements (of which Hildebrand testified he had actual knowledge) – but further endorsed by NY

Life’s Chairman and CEO Seymour Sternberg, and Ted Mathas, NY Life’s current Chairman and

CEO and then itsExecutive VP and Co-Head (along with Hildebrand) of Life & Annuity, and

NYLIC’s Board of Directors. See Exhibit 3 at p. 39. Indeed, Hildebrand testified that NYLIC

shared Morris’ “core values.” Id. at p. 41.

Having lost a critical motion in limine in the Tommy Morgan Case ((discussed more

fully below)), which led to the admissibility of all of Morris’ invidious and despicably bigoted

statements, decided their only chance here was to lie about Morris’ and Hildebrand’s involvement,

and to spoliate the documentary evidence with would have proven their testimony false and

perjurous.4 They did so by putting forth the knowingly false and fraudulent position – in

4
Even that attempt is must fail because New York courts have nonetheless allowed discriminatory remarks
from an alleged non-decisionmaker where they constitute evidence of the atmosphere in which the

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interrogatories, sworn testimony and motion papers filed with the Court – that neither Morris nor

Hildebrand had “any involvement in the decision” to terminate Gregorian. As demonstrated in

herein, and in the documentary evidence attached to the Soulios Aff., that contention was

knowingly and patently false, and utterly contradicted by overwhelming and unequivocal evidence

(testimonial and documentary) adduced in the Morgan Case. More importantly for purposes of the

instant trial, the Defendant spoliated substantially all of the documentary evidence they were

ordered to produce.

As with all material lies, they put the liar in the position of having to double and

triple down on the lie to back it up and reinforce it, and to account for secondary and tertiary

implications of the lie. For example, because the evidence (testimonial and documentary) was so

overwhelming in the Morgan case that Morris and Hildebrand were always materially involved in

the decision to terminate a managing partner during the period 2004-2006, be it Morgan or

Gregorian - indeed it was integral and fundamental to their positions as Senior Vice President of

the Agency Group and Executive Vice-President, respectively – they had to fabricate a new lie to

explain why they did not do that in the case of Tommy Morgan (and other managing partners).

That is exactly what they did here. New York Life, mostly through Paul Morris’ perjurious

testimony, put forth the utterly false and frivolous contention, unsupported by any corroborating

evidence, that Morris’ decision to terminate Tommy Morgan was an isolated case brought about

by “personal problems” allegedly affecting Morgan’s supervisor Brad Willson (again, for which

termination occurred, Girolamo v. Teamsters Local 72, 1998 WL 889039 (S.D.N.Y. 1998), or where the
remarks evidence invidious discrimination. Chiara v. Town of New Castle, 126 A.D.3d 111 (2nd Dep’t
2015).

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there is not only no evidence to support, but actually unequivocal evidence to the contrary). See

SOF ¶¶137-143.

The other problem liars and perjurers are faced with when trying to fabricate stories

and re-write history, is the damning nature of the documentary evidence. To get around the fact

that New York Life’s age based discriminatory practices are so embedded in and systemic to their

personnel files5, New York Life has simply yet willfully refused to produce thousands of

documents that this Court has ordered it to produce.

Although the Defendant has intentionally created a tangled web of lies and deceit,

with the clear purpose of making it as difficult and burdensome (for Plaintiff, the Court and the

jury) and expensive as possible to uncover, Plaintiff nonetheless, in painstaking fashion, untangles

the web and conclusively establishes herein that New York Life:

(i) willfully and contumaciously refused to produce documents and answer

interrogatories in response to multiple discovery requests, including a willful refusal to comply

with discovery orders of this Court, and otherwise spoliated critically relevant evidence;

(ii) produced witnesses who committed perjury in order to foster a knowingly

baseless and fabricated defense;

(iii) submitted pleadings, took positions, and made representations to the Court that

were knowingly false; and

(iv) intentionally, and in bad faith, refused to produce witnesses who had relevant

information, and once ordered to do so, frustrated and obstructed the depositions, which were

replete with improper speaking objections and repeated interjections by Defendant’s counsel of

5 New York Life’s Chief Operating Officer, Robert O’Neill admitted at the Morgan trial that “New York
Life’s performance reviews are ‘littered’ with age-related references.” See Morgan, 507 F. Supp.2d at
820 (Exhibit 2 to the Soulios Aff.).

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statements or comments that interfered with the questioning, offered answers to the deponent, and

otherwise harassed Plaintiff’s counsel.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

1. The Defendant is the largest mutual life-insurance company in the United States,

and one of the largest life insurers in the world, with over $500 billion in total assets under

management, $1.9 billion in operating earnings and more than $22 billion in cash surplus (as of

2015). See Exhibit 4.

2. Yet, New York Life has also become infamous for engaging in a pattern and

practice of age discrimination, and in fact is a fully adjudicated malicious age discriminator.

See Morgan v. New York Life, 507 F.Supp.2d 808 (N.D. Ohio 2008), attached to the Soulios Aff.

as Exhibit 2. In affirming a jury verdict awarding $16 million in damages, including $10 million

in punitive damages for malicious age discrimination, the United States District Court in Morgan

found that New York Life engaged in a pattern and practice of age discrimination and bias that

was implemented by New York Life’s highest level management, affecting not only the plaintiff

Tommy Morgan, as the court noted, but other older managing partners – like Gregorian - as

well. Older managers were forced out and younger managers who were underperforming were

treated more favorably. See Morgan, 507 F.Supp.2d at 814 – 817. It is a sweeping decision that

was affirmed by the Sixth Circuit Court of Appeals.6 See Morgan v. New York Life, 559 F.3d 425

(6th Cir. 2009).

A. GREGORIAN’S AND MORGAN’S CAREERS WERE MARKED BY SIMILAR
SUCCESSES AND, AS THEY APPROACHED FULLY VESTED
RETIREMENTBENEFITS, THE SAME AGE BASED DISCRIMINATION AND
UNLAWFUL TERMINATION

6 Agreeing that at trial there was “substantial evidence of age discrimination,” punitive damages were
reduced to equal but not exceed compensatory damages as required by Ohio law.

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3. Gregorian’s and Morgan’s careers at New York Life bear a strikingly similar path

and outcome. Gregorian, born February 9, 1954, began his employment with NY Life in 1985 as

an agent at age 31. Morgan, born April 21, 1954, began working at NY Life in 1986 at age 32. See

Morgan, 507 F.Supp.2d at 811.

4. Both Gregorian and Morgan rose in ranks at New York Life and were both

eventually promoted to the same position, to wit, Managing Partner of one of New York Life’s

120 General Offices; Gregorian was promoted to Managing Partner of New York Life’s Bay Ridge

office in 1994 and subsequently promoted to Managing Partner of New York Life’s Brooklyn

General Office in 1999. See Complaint, ¶4.

5. For seventeen years (up until 2002 when Defendant commenced an intentional and

unlawful campaign to terminate him) Gregorian’s personnel file evidenced an exemplary career as

an agent and managing partner, marked by achievement, success, commitment and honorable

service. See Exhibit 5.

6. In 2000 Morgan was promoted to Managing Partner of New York Life’s Northern

Ohio General Office. See Morgan, 507 F.Supp.2d at 811.

B. THE STRUCTURE OF NEW YORK LIFE’S PENSION PLAN CREATED AN
ECONOMIC INCENTIVE TO TERMINATE OLDER, LONGER SERVING
MANAGING PARTNERS BEFORE FULLY VESTING AT AGE 55 AND TO
REPLACE THEM WITH YOUNGER LESS EXPENSIVE EMPLOYEES IN
VIOLATION OF LAW AND THEIR OWN POLICIES

7. New York Life’s Pension Plan has two key features: (i) the longer a managing

partner was employed at the Company, the more valuable the pension became, and (ii) a managing

partner had to be employed at the Company until age 55 to become fully vested in the Plan and

receive full benefits. A copy of New York Life’s operative pension plan (“Pension Plan”) is

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attached to the Soulios Aff. as Exhibit 6. During the Tommy Morgan trial Paul Morris provided

the following testimony regarding the Pension Plan:

Q. You certainly understand that there is a very large difference between the kind
of benefit he [Morgan] would receive had he had a full pension from New York
Life versus being terminated at 51?

A. I definitely understand that…

See Morgan Trial Tr. at p. 397, attached to Gregorian’s Motion for Collateral Estoppel as Exhibit
4.

8. In determining the value of the pension benefit NY Life’s Pension Plan, among

other things, considered the managing partners five best years in a ten year period. If a managing

partner had completed more than ten years of employment and was closing in on being fully vested

at age 55, New York Life could begin to assess what that manager’s pension would cost them to

pay out based on his five best years. Indeed, no one was in a better position to know the long-term

cost of paying out pension and health care benefits of a retired employee than a massive insurance

company, whose entire business is based on actuarial models and data upon which their insurance

policies and premiums and profits were based. Likewise, the shorter period of time a managing

partner worked for the Company meant that his or her pension was not close to being fully vested.

Replacing older managing partners, like Gregorian and Morgan, with younger ones served three

key functions: first and foremost, they substantially reduced their pension obligations to the older

managing partners by terminating them before they were fully vested; second, the younger

managing partners that replaced the older ones were paid substantially less; and third, the younger

managing partners usually had fewer years with the Company so their future pension benefits were

much lower, if at all vested. It is an adjudicated fact that although in complete violation of New

York State and New York City anti-discrimination laws, as well as its own company policies, New

York Life, as a matter of practice, forced out older managing partners purely and solely because

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of their age; all in an effort to reduce the pension benefit that the managing partners would have

accrued had they simply remained employed until the age of 55.

9. Recognizing that both Morgan and Gregorian, at ages 51, were getting close to

becoming fully vested in the Pension Plan, the upper management at New York Life, including

Hildebrand and Morris supervised and oversaw the termination of them both on wholly specious

and baseless grounds. Indeed it is an adjudicated fact that Hildebrand and Morris oversaw and

enforced a pattern and practice of age discrimination.7 See Morgan, 507 F.Supp.2d at 823, 827.

10. Consistent with the Defendant’s illegal preference for younger employees,

Hildebrand, on August 31, 2005, just months after Gregorian was terminated and just weeks prior

to Morgan's termination, issued a company-wide email with the subject heading, “A New

Generation of Agency Field Management Leaders.” Therein, Hildebrand described changes that

“will enable [Defendant] to tap into a new generation of managerial talent.” See Exhibit 7.

C. CONTEMPORANEOUS TERMINATION OF GREGORIAN AND MORGAN

11. In 2001 Gregorian was coming off one of the best years in his 15 years (at that time)

at New York Life, achieving a 3.29 GPA, which placed him among the top performers in the entire

company. See Exhibit 8. Nonetheless, the following year, New York Life violated its own written

policy regarding discipline and discharge, skipping the first two stages of discipline required by

the Company’s written policy and placed Gregorian on “final notice.”

12. Specifically, it is an adjudicated fact that New York Life’s policy and practice

provided for a three step progressive process for disciplining managing partners. The first step

7 “Plaintiff offered ample evidence that younger managing partners received preferential treatment, while
defendant required older managing partners to meet higher performance standards.” Morgan, 507
F.Supp.2d at 816.

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was to place the manager on a “performance alert” if the managing partner’s GPA fell below 1.5.8

See Morgan, 507 F.Supp.2d at 817; see also Gregorian’s Memorandum of Law in Support of

Collateral Estoppel, at pp. 5-7. Consistent with the evidence in the Morgan case, Farina testified

here that a 1.5 GPA was the baseline. If a managing partner’s GPA stays at or above 1.5 there is

to be no adverse employment action. If it drops below 1.5 the policy was to enact a series of

warnings and give the managing partner no less than a year to get over 1.5. See Farina Tr. (Exhibit

9), at pp. 105-107. The first warning given to a managing partner was called a “performance alert.”

Id., see also Morgan, 507 F.Supp.2d at 817. If the manager’s GPA did not rise to 1.5 or above

after six months, the managing partner would be placed on a “performance warning.” If during

the time that a manager partner was placed on “performance warning” his or her GPA did not rise

to 1.5 or above the policy was to place the managing partner “final notice” for an additional six

months. If, while on final notice the managing partner’s GPA did not rise to 1.5 the policy was to

terminate. Id.; see also Managing Partner policy, attached hereto the as Exhibits 10 and 11,

respectively, which provides “A Managing Partner is expected to maintain an overall Grade Point

Average (GPA) of at least 1.5. Where the GPA is below 1.5, in general, the Managing Partner will

be placed on probation.” By definition and application “final notice” was the most extreme and

severe form of managing partner discipline New York Life imposed short of termination.

13. In their zeal to terminate Gregorian before his retirement benefits became fully

vested, in November 2002 New York Life completely skipped the less severe “performance alert”

8 “Under New York Life rules, if a manager falls below 1.5, he is subject to a progressive performance
plan. Plaintiff highlighted to the jury that his year-end GPA was at or above 2.0 from 2000 until Plaintiff
was terminated in 2005. New York Life responded, however, that while his year-end GPA was at or above
2.0, his second quarter 2004 GPA fell to 1.5. Seemingly in conflict with its own management practices, the
Defendant skipped the “performance alert” stage of itsPerformance Improvement Program and placed
Plaintiff on “performance warning.” See Morgan, 507 F.Supp.2d at 817.

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and “performance warning” phases and hit Gregorian with the most extreme form of discipline,

placing him on “final warning;” notwithstanding that Gregorian (i) had just finished a

tremendously successful year in 2001 wherein the Brooklyn office was highly profitable and with

a GPA in the upper echelon of all 120 General Offices, (ii) in 15 years Gregorian had never

received any performance warning or discipline and (iii) his year end GPA never fell below 1.5.

Indeed Gregorian’s GPA for 2002 was 2.5, which, under NY Life’s written policy not only made

him not subject to any discipline, but qualified him for a promotion. See Exhibit 11 pp. 1-5. In

2003 Gregorian continued to meet or exceed the objective standards under New York Life’s

policies, achieving a 2.64, but New York Life refused to remove him from “final warning” status.

See Northeast Zone GPA, attached to the Soulios Aff. as Exhibit 12.

14. In 2003 and 2004 Gregorian was hospitalized three times for heart related issues,

including blocked arteries, which required corrective surgeries, and had to take a leave of absence

after his third hospital admission and heart procedure in May 2004. See Gregorian, Tr., p. 194

(attached hereto as Exhibit 13). Notwithstanding these very serious and well-documented medical

and health issues, not only did Paul Morris fail to consider those conditions “extenuating

circumstances” as he could have9, but instead New York Life raised the bar on Gregorian, requiring

him to attain a 2.5 GPA as a condition to keeping his job. See letter from Mark Pfaff dated

December 2004, attached to the Soulios Aff. as Exhibit 14.

9 One of the ways in which New York Life illegally favored younger managing partners, and discriminated
against older ones, was in the disparate application of GPA standards and discipline related thereto; when
younger managing partners’ GPA dropped below 1.5 they were either not disciplined at all or were shown
much greater leniency than older managing partners, as in the cases of Mostafa Abdou, Randy Cox, Ken
Savoie, John Slattery, John Bravata and Amy Scott. See Morgan, 507 F.Supp.2d at 814-15; see also Morgan
trial tr., p. 279-280; see Morris Tr., p. 311-312 (Exhibit 25) indicating that he considered the 37 year old
Ken Savoie’s broken ankle an “extenuating circumstance” warranting leniency for otherwise objectively
subpar and unacceptable performance numbers.

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15. During their depositions Hildebrand, Morris and Pfaff were each asked to identify

another managing partner who was terminated for not maintaining a 2.5 GPA, and none of them

were able to identify a single instance. See Hildebrand, Tr. #2, p. 7, Morris Tr., p. 167, and Pfaff,

Tr.#2, p. 207, attached hereto as Exhibits 15, 16 and 17, respectively. Moreover, the de minimis

production of documents made by New York Life in this case reveals not a single instance in which

a managing partner was either asked to maintain, or terminated for not maintaining, a 2.5 GPA –

as was Gregorian. It is an undisputed fact that Gregorian is the only managing partner that New

York Life terminated because he failed to attain a year end GPA of 2.5.

D. NEW YORK LIFE REPLACED BOTH GREGORIAN AND MORGAN
WITH YOUNGER LESS QUALIFIED CANDIDATES

16. After terminating Gregorian New York Life promoted Raj Bakshi as the managing

partner of the Brooklyn General Office. However, before Bakshi received the offer New York

Life first offered the position to Mostafa Abdou, who declined the offer. Abdou was ultimately

offered and accepted Morgan’s position in the Ohio general office. Pfaff testified as follows on

this point:

Q. How did you come to hire Mr. Bakshi?
A. We have a promotability sequence that we follow, he was on the
promotability list based on his performance, if I remember correctly he was at
least third on the list, had approached two other people ahead of him, maybe
more, but at least two that I know and both turned us down.
Q. Who were the other two people?
A. Moe Abdou was one, and Sandra Ngo, N-G-O.

17. After testifying that Bakshi, who had been with the Company about six years at the

time he was offered Gregorian’s position, ultimately accepted the Brooklyn General Office

position, Pfaff reiterated that Abdou was one of the candidates who was offered that position ahead

of Bakshi, and that he actually interviewed Abdou for Gregorian’s position:

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Q. Were any interviews conducted for this position besides with Mr. Bakshi?
A. Yes, as I previously said we spoke to two other managing partners.
Q. Mr. Abdou and Ms. Ngo?
A. Correct.

See Pfaff, Tr. #1 (dated December 10, 2007) at pp. 25, 28 attached to the Soulios Aff. as Exhibit

18. Abdou was 40 years old when New York Life offered him Gregorian’s position. See Morgan,

507 F.Supp.2d at 811.

18. New York Life promoted the younger Bakshi into Gregorian’s position

notwithstanding the fact that he had recently been disciplined for a serious Company violation

involving “commission switching.” See Exhibit 15 Exec. VP Hildebrand described “commission

switching” as “taking commissions that an agent earned on a case and transferring it to another

agent that had nothing to do with the case, which we don't support.” See Hildebrand, Tr. #2

(Exhibit 19), at p. 64. About commission switching Hildebrand further testified that it is a “very

serious offense,” and “outright bad,” equivalent to “stealing money,” and that it violates

Company policy. Indeed commission switching was so proscribed (and unlawful) by New York

Life that, according to Hildebrand, it warranted immediate termination. Exhibit 19, at p. 64-65

(emphasis added).

19. Moreover, in addition to Bakshi’s gross misconduct involving commission

switching, his overall performance as the managing partner of the Defendant’s Tucson, AZ general

office, was no better than Gregorian’s. Specifically, Bakshi’s GPA in 2002 was 2.5, as was

Gregorian’s. See Exhibit 20 hereto. Likewise Bakshi and Gregorian both finished with GPAs of

2.64 in 2003. See Exhibit 21. For the younger Bakshi, with a history of serious misconduct, a 2.64

GPA meant he was promotable. For the older Gregorian, a 2.64 GPA, which placed him in the

top 43% for the entire Company, meant that he would remain on “final notice” and subject to

15 of 66
FILED: KINGS COUNTY CLERK 08/29/2019 04:37 PM INDEX NO. 34349/2005
NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 08/29/2019

termination. One year later New York Life did just that; they unlawfully terminated Gregorian in

February 2005.

20. Bakshi’s lack of qualifications to run the Brooklyn general office were immediately

evident, as the office production plummeted under his management. In 2007 Bakshi’s mid-year

GPA fell to .89, and he finished the year at .73. Bakshi’s .73 GPA made him the lowest GPA in

the Northeast Zone, and ranked 116 out of 120 general offices in the entire Company. See Exhibit

22. Yet Bakshi was not placed on “final warning,” but instead received the lesser “performance

warning.” 10 Moreover Bakshi refused to perform “supervisory interviews,” which are required to

be completed in accordance with federal and state securities laws and which Hildebrand testified

constituted grounds for termination. See Exhibit 23 to the Soulios Aff.; see also Hildebrand Tr.

#2 (Exhibit 19), pp. 62-63.

21. Moreover, the Defendant’s disparate treatment of younger managing partners was

evidenced by the fact that the performance expectations of the younger Bakshi were lowered as

compared to what was demanded of Gregorian. For example, under Gregorian, New Organization

business development (“New Org Business”), a key indicator of office production11, was $866,496

in 2003. See “At a Glance Chart” attached to the Soulios Aff. as Exhibit 24. Yet when Bakshi

took over the Brooklyn general office in 2005, the Agency Dept., headed by Morris and

Hildebrand, lowered the expectati

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KATHY J. KING Track Judge’s New Case

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Document Filed Date

August 29, 2019

Case Filing Date

July 18, 2006

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Parties

Bloom, ELISE M Attorney for the Defendant
BUCHAN, ALYCHIA LYNN Attorney for the Defendants
GOLDBERG, PINCHOS NISSON Attorney for the Defendant
Havlin, Kimberly Anne Attorney
Hovsep Gregorian Plaintiff
HURD, STEVEN D Attorney for the Defendant
National Association of Women Judges and Legal Momentum Non Party
NEW YORK LIFE INSURANCE COMPANY Defendant
RUTA, JOSEPH A Attorney for the Plaintiff
SOULIOS, STEVEN A. Attorney for the Plaintiff
HOI-LING WONG Attorneys for Defendants
CHRISTOPHER PINCHIAROLI Attorney
SONYA SMITH-VALENTINE Attorneys for Plaintiffs
LING WONG Attorney
JOSEPH NUCCIO Attorney
ROBERT MACCRATE Attorney
Christopher Thorn Attorneys for Plaintiffs
MARC KAUFMAN Attorney
XAVIER CARR Attorney
ROBERT KAUFMAN Attorney
HAYLEY FRITCHIE Attorneys for Defendants
KENNETH FEINBERG Attorney
STEVEN STERN Attorney
David Werber Attorney
JOSHUA GOLDFEIN Attorney
CAROL MCCARVILLE Attorney
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KIMBERLY FOXX Attorney
DORIS CHEW Attorney
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HEATHER MCDEVITT Attorney
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ANDREW SY Attorney
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Motion-Secondary: Hovsep Gregorian v. New York Life Insurance Company

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