Rockman v. USI Insurance Services LLC

Background

Michael Rockman sued USI Insurance Services LLC and other entities, alleging age discrimination under the federal Age Discrimination in Employment Act, the New York State Human Rights Law, and the New York City Human Rights Law. He also alleged that USI violated New York Labor Law by paying commissions late. Rockman later dismissed his claims against the other entity defendants. USI moved for summary judgment, which asks the court to rule without a trial when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law.

Rockman began working at USI in 2017 after USI acquired his former employer. He worked part-time on three accounts: L3 Technologies, Broadcast Sports International, and FSA. He was paid through commissions and received an annual draw of $252,651. L3 ended its relationship with USI in 2018, and the account was transferred to another broker. After that loss, Rockman’s annual draw fell to $5,000. USI concluded that there was not enough work to keep him employed, considered but rejected placing him in a salaried account-executive role or assigning him a new book of business, and terminated him effective October 5, 2018. Rockman was 80 at the time.

USI later paid Rockman $19,209.30 in commissions that USI received from L3 after his termination. Rockman argued that this payment violated New York Labor Law because it was made after the statutory payment deadline.

Age-Discrimination Claims

The court applied the three-step framework used for the federal and New York State age-discrimination claims. First, a plaintiff must present initial evidence supporting an inference of discrimination. If that showing is made, the employer must identify a legitimate, nondiscriminatory reason for its action. The plaintiff must then show that the stated reason was a pretext and that age was the necessary cause of the action. The court noted that the New York City law requires proof that age was a motivating factor rather than the necessary cause.

The court held that Rockman failed to present evidence supporting an inference of age discrimination. His main argument was that USI considered alternative positions for younger members of the L3 team but did not find one for him. The court explained that an employer is not required to create or offer another position to a terminated employee for a nondiscriminatory reason. It also found that the record showed USI did consider alternatives for Rockman.

The court further held that Rockman had not shown that the younger employees were similarly situated. Unlike Rockman, they were full-time, salaried employees with different titles, duties, and responsibilities. The court also rejected Rockman’s unsupported statements about producers hired after his termination because he provided no evidence about their ages, qualifications, backgrounds, or books of business.

Even assuming Rockman had made an initial showing, the court held that he could not rebut USI’s stated reason for the termination. USI consistently attributed the termination to the loss of the L3 account and the resulting lack of work and commissions. Rockman had not worked on other accounts during his USI employment, and he offered no admissible evidence that age influenced the decision. The court therefore granted summary judgment on the age-discrimination claims.

New York Labor Law Claim

The court also granted summary judgment on Rockman’s commission-payment claim. New York Labor Law requires timely payment of commissions that are earned or payable under the agreed terms of employment. Rockman’s employment agreement stated that, after termination, he would receive only commissions earned by him and received by USI before termination.

Because USI received the commissions at issue after Rockman’s termination, the court held that those commissions were not payable under the agreement and therefore were not subject to the statute’s timing requirements. Although USI voluntarily offered to pay the commissions anyway, the court found that this offer did not modify the employment agreement. There was no evidence of mutual assent to a modification, and the offer did not satisfy the agreement’s requirements for changing its terms, including 30 days’ written notice and consideration through continued employment.

Disposition

Judge Valerie Caproni concluded that USI was entitled to judgment on all claims. The court granted USI’s motion for summary judgment in its entirety, directed the clerk to terminate all open motions, and closed the case.