Claud v. Brown Harris Stevens Residential Sales, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SHAUNCY CLAUD

Plaintiff,

MEMORANDUM & ORDER

-against- 18-CV-1390 (DRH)(AKT)

BROWN HARRIS STEVENS RESIDENTIAL

SALES, LLC,[1 ] and BROWN HARRIS STEVENS

OF THE HAMPTONS, LLC,

Defendants.

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APPEARANCES:

For Plaintiff:

Law Offices of G. Oliver Koppell & Associates

99 Park Avenue, Suite 1100

New York, New York 10016

By: G. Oliver Koppell, Esq.

Daniel F. Schreck, Esq.

For Defendant Brown Harris Stevens of the Hamptons, LLC:

Law Offices of Andrew P. Saulitis, P.C.

40 Wall Street – 37th Floor

New York, New York 10005

By: Andrew P. Saulitis, Esq.

HURLEY, Senior District Judge:

Plaintiff Shauncy Claud (“Claud” or “Plaintiff”) commenced this action

against defendant Brown Harris Stevens of the Hamptons, LLC (“BHSH” or

“Defendant”) asserting a claim pursuant to 42 U.S.C. § 1981. Presently before the

1 By stipulation of dismissal So Ordered on August 6, 2018, the claims against Brown Harris Stevens

Residential Sales, LLC were dismissed.

Court is Defendant’s motion for summary judgment. For the reasons set forth

below, the motion is granted in part and denied in part.

BACKGROUND

I. Undisputed Facts

The following facts are undisputed unless otherwise noted.

From November 7, 2016 through June 30, 2017, Claud was associated, as an

independent contractor, with BHSH as a licensed real estate salesperson under the

terms of two substantially similar Independent Agent Agreements dated November

7, 2016 and April 10, 2017 (the “IA Agreement”). (Pl.’s Counter 56.1 at ¶ 1.)

Among other things, the IA Agreement provides that “[Claud] is engaged as

an independent agent associated with Broker [BHSH] and shall not be treated as an

employee for federal and New York state tax purposes . . . or for any other

purposes.” It further provides that Claud “shall be permitted to work any hours he

or she chooses” and “shall be permitted to work out of his or her own home or the

office of the Broker.” The “[IA] Agreement and the association created thereby may

be terminated by either party thereto at any time for any or no reason upon written

notice given to each other.” Claud’s compensation was “on a commission on [her]

gross sales, if any,” which “commissions shall be computed in accordance with

[BHSH’s] standard policies and procedures as modified from time to time in

[BHSH’s] sole discretion.” The IA Agreement does not accord Claud any draw, any

minimum commissions, or any other benefits. The IA Agreement is substantially

the same as the agreements for all other licensed real estate salespersons at BHSH,

as were the commission arrangements. From the beginning of her association with

BHSH through June 2017, Claud earned a total of $8,067 in commissions, which

she received in full. (Pl.’s Counter 56.1 at ¶¶ 2-9.)

On April 17, 2017, BHSH entered into an Exclusive Right to Sell the

residential real property located at 300 Moses Lane, Southampton, New York 11968

(the “300 Moses Property’) with Cassandra Ham-Brown (“Brown”), the owner of said

property. Under the terms of the agreement with Brown, BHSH was the exclusive

agent for a one-year period, from April 17, 2017 through April 16, 2018 and the

property would be represented by Claud. It further provided that BHSH “will . . .

present all offers [to Brown]” and “will maintain and provide to [Brown] at [her]

request, a list of all customers to whom the Property has been shown or who have

expressed an interest in it.” (Pl.’s Counter 56.1 at ¶¶ 10-13.)

On June 29, 2017, unable to reach Brown, Claud called Karen L. Ham

(“Ham”), Brown’s adult daughter. Claud spoke to Ham twice. In those telephone

calls Claud told Ham that she wanted to speak to Brown about the 300 Moses

Property, that there had been “people . . . calling who were interested” in it and

wanted to see it. Claud said she “had received [two or three] offers on the property”

including specific amounts and she “had that information at [her] disposal.” Ham

told Claud she knew where Brown was, that she was aware of who Claud was and

that she would call Claud right back with Brown on the line; Claud responded that

would be “okay.” (Pl.’s Counter 56.1 at ¶¶ 14-17.)

Shortly thereafter on June 29, 2017 at 6:26 p.m. Claud had a telephone

conference with Brown and Ham in connection with the 300 Moses Property listing.

Brown did not object during the call to her daughter being a participant. However,

according to Claud she had previously been instructed not to discuss offers for the

property with Ham. During the course of the call, Claud informed Ham that she

couldn’t discuss the sale of the house with her. Ham demanded Claud take the

house off the market, which Claud refused to do as Ham was not the client. The call

was an unpleasant one although Claud states her tone remained friendly while

Ham screamed and cursed during the call. The conversation ended with Claud

hanging up on Brown and Ham. Claud did not report the conversation to BHSH.

(Pl.’s Counter 56.1 at ¶¶ 18-25.)

According to BHSH, that same day at about 7:00 p.m. Ham, with Brown on

the line called Aspasia Comnas (“Comnas”), Executive Managing director of BHSH.

According to Comnas, Ham reported the phone conversation with Claud,

complained of Claud’s conduct toward her and her mother, and asked that Claud no

longer act as the representative for the 300 Moses Property. The next day Claud’s

IA Agreement was terminated by Comnas. As discussed below, Plaintiff disputes

that the call with Comnas ever took place. (Pl.’s Counter 56.1 at ¶¶ 26-27.)

After Claud was terminated, a new agent was appointed to replace her on

Brown’s listing, which change was memorialized in an amended exclusive listing

agreement. BHSH continued the exclusive listing for the 300 Moses Property, albeit

at a lower asking price. The property did not sell and the listing eventually expired.

(Pl.’s Counter 56.1 at ¶ 35.)

Almost immediately after her termination, Plaintiff became associated with

Nest Seekers LLS, located at 20 Main Street, Southampton, NEW York as a

licensed real estate salesperson. During her first seven months with Nest Seekers,

Plaintiff earned $10,851 in commissions, which was somewhat more than she

earned during her seven months at BHSH. (Pl.’s Counter 56.1 at ¶¶ 38-39.)

II. Additional Facts Proffered by Plaintiff2

Plaintiff is African-American and a licensed real estate person. Her first

experience in real estate was as a salesperson for Town & Country real estate,

where she worked from November 2014 through November 2016. Upon leaving

that entity she began working for Defendant. (Pl.’s Counter 56.1 at ¶¶ 47-50.)

While at BHSH Plaintiff’s immediate supervisor was Robert Nelson

(“Nelson”), Senior Managing Director. Comnas, the Executive Managing Director of

BHSH, worked out of the Bridgehampton and East Hampton offices. She was a

more senior person who Plaintiff did not see regularly but consulted with on

questions or issues. (Pl.’s Counter 56.1 at ¶¶ 53-54.)

According to Plaintiff, Nelson said to her “in a not nice tone of voice that she

was the only black agent in the Hamptons” and never gave her any support by

accompanying her to sales pitch meeting like managers are supposed to and so she

2 The Court’s recitation contains only matters supported by admissible evidence, i.e.-hearsay

statements, such as Plaintiff’s deposition testimony that Brown told Plaintiff she did not complain

about her, are not included.

had to ask other senior agents to accompany her. At her deposition she testified

that Nelson accompanied white sales agents to sales pitch meetings but could not

identify any particular agent that he accompanied. Other occasions on which Nelson

did not assist her include: (1) refusing to meet with Plaintiff when she first brought

to Defendant the exclusive listing on a substantial property; (2) declining to

accompany her to a client meeting so that the client could met a member of BHSH’s

management team and a price reduction could be discussed and telling her to just

send a letter; (3) in response to a request for assistance in preparing “comps” for a

particular property, telling her to “Google” or “YouTube” her question; (4) excluding

her from the “Up-Board, a form of lead generation for persons who either call or

walk into the office and are interesting in buying selling or renting real estate; and

(5) refusing to give Plaintiff credit for work she had done in updating listing to the

current pricing and availability. (Pl.’s Counter 56.1 at ¶¶ 61-70.)

On June 14, 2017, Plaintiff met with Comnas at the Southampton office; the

meeting was at Plaintiff’s request. Plaintiff told Comnas that Nelson “made [her]

uncomfortable with [her] race, and [she] wasn’t getting the support that [she] saw

him giving [her] colleagues.” She told Comnas “he treats me differently than he

treats non-African American real estate salespersons.” Plaintiff told Comnas about

a time when right in the middle of an appointment with a homeowner, Nelson just

got up, how she was embarrassed and did not get the listing; that she needed

support, the support Nelson gave her colleagues. Plaintiff asked Comnas not to tell

Nelson as she was afraid of how he would respond. Plaintiff was fired shortly

thereafter. Defendant denies the claimed June 14 meeting ever took place. (Pl.’s

Counter 56.1 at ¶¶ 71-74.)

On June 17 or 18, Plaintiff was arrested for knocking over a tip jar at a

restaurant. As a result of the arrest, Plaintiff pled guilty to a violation. The

Southampton Press ran an article about her arrest on June 23, 2017, a week prior

to her termination. Copies of the newspaper were available at the offices of

Defendant. After being made aware of the upcoming article, Plaintiff sent the

following email to Nelson: “There was an alleged incident that you may be made

aware of involving myself at Gators. I’ve been advised by counsel to not speak about

the matter. I’ve never been in a situation like this and I’m taken back by the

allegations being made against me. What’s being said is entirely untrue and I’ll be

working with counsel to have the situation dropped immediately.” Comnas admits

she and Nelson discussed the email, although she denied they knew what the email

was talking about and said they conducted no follow-up regarding it. Comnas also

claims to be unaware of the arrest of two other Caucasian agents during their

employment, who were not fired by Defendant. (Pl.’s Counter 56.1 at ¶¶ 76-83.)

Plaintiff became aware of Brown as a potential client through Brown’s

nephew, who was good friends with Plaintiff and her family. After several meeting

Plaintiff was retained by her as her realtor to sell her home. The listing price was to

be $799,000.00. Plaintiff received inquiries regarding the property and occasionally

showed the property. She received offers to purchase which she conveyed to Brown,

who was not happy with the offers received. The sale price was eventually lowered

by $100,000.00. (Pl.’s Counter 56.1 at ¶¶ 84-92.)

Starting about a week after she was terminated by BHSH, Brown continued

to call Plaintiff. On or about July 13, 2017, Plaintiff was called by the Southampton

Police department and told her Brown has fallen and had given Plaintiff as a person

to contact to help her. When Plaintiff saw Brown, they discussed that Plaintiff was

no longer working for Defendant and Brown expressed a desire to continue to be

represented by Plaintiff. Plaintiff prepared an exclusive right to sell agreement for

Brown with Nest Seekers and a terminate letter for BHSH, both of which Brown

signed. (Pl.’s Counter 56.1 at ¶¶ 108-110.)

DISCUSSION

I. Summary Judgment Standard

Summary judgment, pursuant to Rule 56, is appropriate only 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). The

relevant governing law in each case determines which facts are material; "[o]nly

disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). When making this determination, a court

must view all facts “in the light most favorable” to the non-movant, Tolan v. Cotton,

134 S. Ct. 1861, 1866 (2014), and “resolve all ambiguities and draw all permissible

factual inferences in favor of the [non-movant],” Johnson v. Killian, 680 F.3d 234,

236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).

Thus, “[s]ummary judgment is appropriate [only] where the record taken as a whole

could not lead a rational trier of fact to find for the [non-movant].” Id. (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986))

(internal quotation marks omitted).

To defeat a summary judgment motion properly supported by affidavits,

depositions, or other documentation, the non-movant must offer similar materials

setting forth specific facts demonstrating that there is a genuine dispute of material

fact to be tried. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). The non-movant

must present more than a "scintilla of evidence," Fabrikant v. French, 691 F.3d 193,

205 (2d Cir. 2012) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt

as to the material facts," Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)

(quoting Matsushita, 475 U.S. at 586-87), and “may not rely on conclusory

allegations or unsubstantiated speculation,” Id. (quoting FDIC v. Great Am. Ins.

Co., 607 F.3d 288, 292 (2d Cir. 2010).

The district court considering a summary judgment motion must also be

"mindful . . . of the underlying standards and burdens of proof," Pickett v. RTS

Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252),

because the "evidentiary burdens that the respective parties will bear at trial guide

district courts in their determination[s] of summary judgment motions," Brady v.

Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). "[W]here the [non-movant]

will bear the burden of proof on an issue at trial, the moving party may satisfy its

burden by pointing to an absence of evidence to support an essential element of the

[non-movant’s] case.” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486

(2d Cir. 2014) (quoting Brady, 863 F.2d at 210-11) (internal quotation marks

omitted). Where a movant without the underlying burden of proof offers evidence

that the non-movant has failed to establish his claim, the burden shifts to the

non-movant to offer "persuasive evidence that his claim is not 'implausible.' "

Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587). “[A] complete failure of

proof concerning an essential element of the [non-movant’s] case necessarily renders

all other facts immaterial.” Crawford, 758 F.3d at 486 (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986).

II. Section 1981

Section 1981 safeguards an individual’s right to “make and enforce contracts”

from racial discrimination. 42 U.S.C. § 1981. To fall within its scope of protection, a

plaintiff must show that the defendant impeded one of his/her contractual rights,

which include “the making, performance, modification, and termination of contracts,

and the enjoyment of all benefits, privileges, terms, and conditions of the

contractual relationship.” 42 U.S.C § 1981(b); see Clark v. City of New York, 2014

WL 4804237, at *2 (E.D.N.Y. Sept. 25, 2014). “Section 1981 offers relief when racial

discrimination blocks the creation of a contractual relationship, as well as when

racial discrimination impairs an existing contractual relationship, so long as the

plaintiff has or would have rights under the existing or proposed contractual

relationship.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006).

It is settled in the Second Circuit that at-will employment is a “contractual

relationship within the meaning of § 1981.” Lauture v. Int'l Bus. Machines Corp.,

216 F.3d 258, 261 (2d Cir. 2000). Under Section 1981, a plaintiff may sue for

discriminatory discharge. Id. at 264.

“To establish a claim under 42 U.S.C. § 1981, plaintiffs must allege facts

supporting the following elements: (1) plaintiff[] [is a] member[] of a racial minority;

(2) defendant[‘s] intent to discriminate on the basis of race; and (3) discrimination

concerning one of the statute’s enumerated activities.” Brown v. City of Oneonta, N.

Y., 221 F.3d 329, 339 (2d Cir. 2000) (citing Mian v. Donaldson, Lufkin & Jenrette

Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam)); accord Ludwig’s

Drugstore, Inc. v. Forest City Enterprises, Inc., 2016 WL 915102, at *12 (E.D.N.Y.

Mar. 4, 2016) (quoting Bentley, Jr. v. Mobil Gas Station, 599 F. App'x 395, 396 (2d

Cir. 2015) (citation omitted)). Liability under § 1981 requires “proof of intentional

discrimination.” Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375

(1982). Although the statute is silent on the issue, “42 U.S.C. § 1981 encompasses

claims of retaliation.” CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2008).

Claims under Section 1981, whether for straight discrimination or

retaliation, are analyzed using the McDonnell Douglas burden-shifting framework.

Id.; Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir. 2015 (“Retaliation

claims under Title VII and § 1981 are both analyzed pursuant to Title VII principles

and the McDonnell Douglas burden-shifting evidentiary framework” (citing Hicks v.

Baines, 593 F.3d 159, 164 (2d Cir. 2010))); Fincher v. Depository Trust & Clearing

Corp., 604 F.3d 712, 720 (2d Cir. 2010) (same); Bowen-Hooks v. City of New York, 13

F. Supp. 3d 179, 209-10 (E.D.N.Y. 2014) (citing McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)); Acosta v. City of New York, 2012 WL 1506954 at *8 (S.D.N.Y.

Apr. 26, 2012). Under that framework, the plaintiff must first establish a prima

facie case of discrimination. Id. To establish a prima facie case of discrimination,

the plaintiff must show that: (1) he is a member of a protected class; (2) he is

qualified for the position; (3) he has suffered an adverse employment action; and (4)

the circumstances give rise to an inference of discrimination. Id. If the plaintiff

meets this “minimal” burden, Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir.

2008), a “temporary presumption” of discrimination arises, and the burden shifts to

the defendant-employer to articulate a legitimate, non-discriminatory reason for the

challenged conduct, Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d

Cir. 2015) (quoting Littlejohn, 795 F.3d at 307, 311). If the defendant-employer

articulates such a reason, the burden shifts back to the plaintiff to show that the

defendant-employer’s reason was pretext for the discrimination. Id. at 83.

The requirement of producing evidence to support an inference of

discrimination “is a ‘flexible [standard] that can be satisfied differently in differing

factual scenarios.’ ” Saji v. Nassau Univ. Med. Ctr., 724 F. App'x 11, 17 (2d Cir.

2018) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)).

“No one particular type of proof is required to show that [a] [p]laintiff’s termination

occurred under circumstances giving rise to an inference of discrimination.” Moore

v. Kingsbrook Jewish Med. Ctr., 2013 WL 3968748, at *6 (E.D.N.Y. July 30, 2013)

(citations omitted); see also Chertkova, 92 F.3d at 91 (“[T]here is no unbending or

rigid rule about what circumstances allow an inference of discrimination.”). An

inference of discrimination can be drawn from circumstances, including, without

limitation, by showing that the defendant treated the plaintiff “less favorably than

a similarly situated [person] outside his[/her] protected group,” Toussaint v. NY

Dialysis Servs., Inc., 706 F. App'x 44, 45 (2d Cir. 2017) (quoting Graham v. Long

Island Rail Road, 230 F.3d 34, 39 (2d Cir. 2000)); Saji, 724 F. App'x at 17 (stating

an inference of discrimination may be established by evidence of “more favorable

treatment of employees not in the protected group”) (quoting Abdu–Brisson v. Delta

Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001)). “In assessing the record to

determine whether there is a genuine issue to be tried,” a court is obliged to

“carefully distinguish between evidence that allows for a reasonable inference of

discrimination and evidence that gives rise to mere speculation and conjecture.”

Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 87 (2d Cir. 2016) (quoting Bickerstaff v.

Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999)).

When seeking to establish an inference of discrimination through evidence of

more favorable treatment of persons not in the protected group, “the plaintiff must

show that the comparators in question were similarly situated to the plaintiff in all

material respects.” Saji, 724 F. App'x at 17 (citations and internal quotation marks

omitted). “Although the question of whether two individuals were ‘similarly

situated’ for these purposes is often a question for the jury, ‘a court can properly

grant summary judgment where it is clear that no reasonable jury could find the

similarly situated prong met.’ ” Id. (quoting Harlen Assocs. v. Inc. Vill. of Mineola,

273 F.3d 494, 499 n.2 (2d Cir. 2001)).

III. Application to the Present Case

Plaintiff has satisfied the first prong required in a ¶ 1981 case as it is

undisputed that she is African-American.

Plaintiff has also satisfied the third prong. Section 1981 defines the scope of

protected contract rights to include: “the making, performance, modification, and

termination of contracts, and the enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship.” 42 U.S.C. § 1981(b). The IA Agreement

constituted a contractual relationship between Plaintiff and Defendant and the

alleged discrimination terminated Plaintiff’s ability to enjoy the benefits of that

contract, including the ability to earn commissions. Cf. Rojas v. Signature Bank,

2019 WL 1333257, at *2 (E.D.N.Y., 2019) (“Plaintiff and Defendant had a

contractual relationship, as account holder and bank respectively, and Defendant’s

alleged discrimination concerned Plaintiff’s ability to make and enforce that

contract, one of the activities enumerated in § 1981.”) That the contract was

terminable by either party for “any reason” does not change that conclusion. Just as

an employment at will can be terminated for any reason or no reason, but not for a

discriminatory reason, see cases cited supra, the IA Agreement could not be

terminated for a discriminatory reason.

It is the second prong of a §1981 claim that is the appropriate focus for

present purposes.

Plaintiff advances two theories in support of her claim that the IA Agreement

was terminated for a discriminatory reason. First, she contends that she was fired

due to her arrest whereas white agents who were arrested were not fired. Second,

she claims that she was fired as a result of her complaint to Comnas about Nelson’s

discriminatory treatment of her. It is to these topics the Court now turns.

A. Plaintiff’s Arrest

Plaintiff has failed to submit sufficient evidence to permit a jury to conclude

that her IA Agreement was terminated because of her arrest while the agreements

of non-African-American agents who were arrested were not terminated.

First, Plaintiff has not demonstrated that either Nelson or Comnas knew of

her arrest. Her reliance on the email she sent is misplaced. While she characterizes

it as advising them of her arrest, in fact it does not. It refers to a legal matter but

does not characterize its nature, viz. civil or criminal. or otherwise provide any

particulars thereof. And while a copy of the publication which reported on the arrest

was, according to Plaintiff, available in the Defendant’s office, there is no testimony

concerning whether Comnas or Nelson saw the article and Comnas’s testimony that

she was unaware of the arrest is unrebutted.

Furthermore, evidence to support the claim of disparate treatment, viz. that

non-African-American agents were arrested but not terminated, is lacking. While

in her deposition Plaintiff identifies two Caucasian agents who were arrested but

not fired, she fails to provide any details to support that she was “similarly

situated” to either of them “in all material respects,” Ruiz v. Cty. of Rockland, 609

F.3d 486, 493 (2d Cir. 2010). By way of example, there is no information as to how

long these other individuals had been associated with Defendant or the nature of

the charges against them. Indeed, the record before this Court does not contain the

charges that Plaintiff faced; Plaintiff only states she pled guilty to “a violation.” The

failure to provide evidence that she was similarly situated to these individuals is

fatal to Plaintiff’s disparate treatment claim premised upon her arrest. See

Fahrenkrug v. Verizon Servs. Corp., 652 F. App'x 54, 57 (2d Cir. 2016) (concluding

that the plaintiff had not shown disparate treatment where she “did not submit any

evidence pertaining to her comparators' job duties, assignments, bonuses, or salary

increases”); Pierre v. Air Serv Security, 2016 WL 11396816, at *6 (E.D.N.Y. July 28,

2016) (finding that the plaintiff failed to establish a prima facie case of

discrimination where he “fail[ed] to offer any evidence to support the proposition

that he is either similarly situated to other employees or that he was treated any

differently”), adopted by decision reported at 2016 WL 5136256 (E.D.N.Y. Sept. 21,

2016).

Plaintiff points to the fact that Comnas felt it was necessary to change the

locks because of Plaintiff’s termination and claims that the locks at the office were

not changed when other agents who were not African Americans “left” Defendant’s

employ. She fails to identify the agents who “left” and submits no evidence as to the

circumstance of their departure such as whether such as whether they were

terminated, as opposed to having left voluntarily. Her failure to demonstrate that

she was similarly situated to the unidentified agents who left precludes an

inference of discrimination based on the changing of the locks to Defendant’s office.

Summary judgment is granted to the extent Plaintiff’s 1981 claim is

premised on her arrest.

B. Plaintiff’s Complaint to Comnas Concerning Nelson

Plaintiff’s second theory of discrimination is that she was fired because of her

complaint to Comnas about Nelson. As such, the claim falls within the rubric of a

retaliation claim.

As stated earlier, retaliation claims under ¶ 1981 are analyzed under the

McDonnel-Douglas framework whereby a plaintiff must first establish “a prima

facie case of retaliation.” Russell v. N.Y.U., 739 F. App'x 28, 32 (2d Cir. 2018)

(quoting Hicks, 593 F.3d at 164). This requires a plaintiff to show “(1) participation

in a protected activity; (2) that the defendant knew of the protected activity; (3) an

adverse employment action; and (4) a causal connection between the protected

activity and the adverse employment action.” Russell, 739 F. App'x at 32 (quoting

Hicks, 593 F.3d at 164).

If the plaintiff sustains this initial “de miminis” burden, Duplan v. City of

New York, 888 F.3d 612, 626 (2d Cir. 2018), a “presumption of retaliation” arises

and the defendant must “articulate a legitimate, non-retaliatory reason for the

adverse employment action,” Saji, 724 F. App'x at 14 (quoting Hicks, 593 F.3d at

164). “If the defendant does so, then the burden shifts back to the plaintiff . . . [to]

show that the reason offered by the employer is merely pretext, and that the

employer’s ‘desire to retaliate’ was the actual ‘but-for cause of the challenged

employment action.’ ” Id. (quoting Ya–Chen Chen v. City Univ. of N.Y., 805 F.3d 59,

70 (2d Cir. 2015)). “ But-for causation does not, however, require proof that

retaliation was the only cause of the employer’s action, but only that the adverse

action would not have occurred in the absence of the retaliatory motive.” Duplan,

888 F.3d at 625 (internal quotation marks omitted); Johnson v. Schmid, 750 F.

App'x 12, 18 (2d Cir. 2018) (applying but-for causation principles to the plaintiff’s

section 1981 claim).

Plaintiff has submitted sufficient evidence to support her prima facie burden

for the claim of retaliation. Turning first to engaging in protected activity of which

the employer is aware, those elements are satisfied by, among other things,

“informal protests of discriminatory employment practices, including making

complaints to management.” DeVore v. Neighborhood Housing Servs. of Jamaica,

Inc., 2017 WL 1034787, *9 (E.D.N.Y. Mar. 16, 2017) (citing Littlejohn, 795 F.3d at

317-18 ). Here, the protected activity consists of Claud’s complaint to Comnas

concerning Nelson, to wit that he made her uncomfortable because of her race and

treated her differently than non-African-American salespersons. Cf. Mayers v.

Emigrant Bancorp, Inc., 796 F. Supp. 2d 434, 448 (S.D.N.Y. 2011) (“An employee

engages in a protected activity when she complains of an employment practice that

she reasonably believes violates the law.”) The deposition testimony of plaintiff

concerning this conversation is sufficient to permit a jury to conclude that she was

complaining about race discrimination, as opposed to unfair treatment untethered

to her protected status. See Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d

98, 108 (2d Cir. 2011). While Defendant contends that this conversation never took

place, that factual dispute cannot be resolved in the context of a motion for

summary judgment.

Plaintiff has also presented sufficient evidence in support of the third and

fourth elements of her prima facie case. The adverse action is the termination of her

IA Agreement. Given that the termination occurred less than one month after

Plaintiff’s reported conversation with Comnas, there is sufficient evidence of

causation. See Williams v. County of Nassau, 2019 WL 2270518, at * 11 (E.D.N.Y.

May 28, 2019) (stating that one of the ways to support the element of causation is

“by showing that the protected activity was followed closely by discriminatory

treatment,” and that while the Second Circuit “has not drawn a bright line to define

the outer limits beyond which a temporal relationship is too attenuated to establish

a causal relationship,” it has “upheld an inference of a causal connection based on

lapses of up to eight months between the protected activity and the alleged

retaliatory actions.”) (citing cases), aff’d, 806 F. App’x 75 (2d Cir. 2020).

In response, Defendant offers as its “legitimate, non-retaliatory reason” for

the termination of the IA Agreement, the telephone call from Brown and Ham

complaining about Claud. The burden therefore shifts to Plaintiff to show pretext.

Here, Plaintiff disputes that the telephone call from Ham and Brown ever

took place. She points out that (1) Comnas works out of a different office than her,

raising questions as to why Ham and Brown would call a different office to complain

about her when Comnas admits she had never before spoken to either of them; (2)

the timing of the call is after the office is closed, calling into question whether

Comnas was still in the office or answering phones at that juncture; (3) the

extended nature of the contact between Claud and Brown following the alleged

complaint, including her continued representation of Brown; and (4) BHSH’s failure

to investigate the complaint or discuss it with Plaintiff. (Pl.’s Counter 56.1 at ¶¶

26.)3 If nothing else, the testimony regarding the continuing contact between

Plaintiff and Brown following the complaint and Brown’s notification to BHSH that

she wished to terminate the contract with Defendant because she agreed to work

exclusively with Plaintiff and did not want to work with any other BHSH agent (Ex.

7 to Koppell Declar.) sufficiently raise the issue of pretext. Thus the question of

whether the termination of Plaintiff’s IA Agreement was in retaliation for protected

activity must be decided by a jury.

CONCLUSION

Defendant’s motion for summary judgment is granted to the extent that

Plaintiff’s 1981 claim is premised on her arrest but denied to the extent that it is

premised on retaliation.

SO ORDERED.

Dated: Central Islip, New York s/ Denis R. Hurley

July 7, 2020 Denis R. Hurley

United States District Judge

3 Plaintiff also argues that the email exchange between Comnas and Nelson regarding Comnas’

telephone call with Ham and Brown supports pretext because one of the emails has a time of 4:10

p.m., before the alleged conversation with Ham and Brown took place. Defendant, however, has

submitted unrebutted evidence that Nelson was on the west coast that day and the differing time

zone explains the 4:10 time.