# Claud v. Brown Harris Stevens Residential Sales, LLC

> District Court, E.D. New York · July 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10304461

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304461

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
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.
-----------------------------------------------------------X

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304461. Public record. Not legal advice.