Schwartz v. Allstate Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------X For Online Publication Only

STEVEN SCHWARTZ,

Plaintiff,

MEMORANDUM & ORDER

-against- 20-CV-79 (JMA) (JMW)

FILED

ALLSTATE INSURANCE COMPANY, CLERK

1:12 pm, Mar  31, 2023

Defendants. U.S. DISTRICT COURT

-------------------------------------------------------------X EASTERN DISTRICT OF NEW YORK

AZRACK, United States District Judge: LONG ISLAND OFFICE

Plaintiff Steven H. Schwartz (“Plaintiff”)—a Jewish man born in 1956—alleges that

Defendant Allstate Insurance Company (“Allstate”) discriminated against him based on his age

and religion in violation of the Title VII, the ADEA, and the New York State Human Rights Law

(“NYSHRL”). Plaintiff also alleges that Defendant retaliated against him for complaining about

a hostile work environment. Currently pending before the Court is Defendant’s motion for

summary judgment. For the reasons set out below, Defendant’s motion is GRANTED.

I. BACKGROUND

Plaintiff’s response to Defendant’s motion for summary judgment is patently deficient

under Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and

Eastern Districts of New York (“Local Rule 56.1”). As explained below, the Court deems admitted

the undisputed facts set out in Defendant’s 56.1 Statement that Plaintiff has failed to properly

controvert. The Court sets out those facts, which have been deemed admitted, below. Plaintiff

has also waived any argument that the Court should consider any other potential evidence in the

record.

And, assuming arguendo that the Court should nevertheless still consider the entire record,

the Court also lays out, infra, a further recitation of the facts based on a review of the underlying

record in this case.

A. Facts Deemed Admitted and Undisputed Pursuant to Local Rule 56.1

1. Local Rule 56.1

Local Rule 56.1 requires a party moving for summary judgment to submit a statement of

the allegedly undisputed facts on which the moving party relies, together with citation to the

admissible evidence of record supporting each such fact. Local Rule 56.1(a), (d). The papers of

the party “opposing a motion for summary judgment shall include a correspondingly numbered

paragraph responding to each numbered paragraph in the statement of the moving party, and if

necessary, additional paragraphs containing a separate, short and concise statement of additional

material facts as to which it is contended that there exists a genuine issue to be tried.” Local Rule

56.1(b). If the opposing party fails to specifically controvert a fact set forth in the moving party’s

Rule 56.1 statement, that fact will be deemed admitted. Local Rule 56.1(c). Each statement by

the opponent controverting “any statement of material fact, must be followed by citation to

evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).”

Defendant followed Local Rule 56.1 by setting out specific factual assertions and by citing

to specific evidence in the record in support of each of those assertions. Plaintiff’s 56.1 statement

is patently deficient and does not comply with the Local Rule 56.1. Plaintiff purports to “dispute”

various paragraphs in Defendant’s 56.1 statement. Plaintiff’s 56.1 statement, however, does not

cite to specific evidence in the record. At certain points, Plaintiff’s 56.1 Statement generally

references his deposition testimony, but does not cite to any specific pages of the deposition.

Plaintiff also does not cite to any specific pages from the deposition of his supervisor, Vincent

Ferrara. A plaintiff does not “properly controvert” an asserted fact in a 56.1 statement by citing to

an “entire deposition transcript without a point cite.” Russell v. Aid to Developmentally Disabled,

Inc., 753 F. App’x 9, 12–13 (2d Cir. 2018). Additionally, in response to ten factual assertions in

Defendant’s 56.1 statement, Plaintiff responds that “Defendant lacks sufficient information to form

a belief as to the truth of this statement.” This statement and other similar statements in Plaintiff’s

56.1 are not sufficient responses under Local Rule 56.1 when, as here, the defendant has cited to

admissible evidence in support of its factual assertions. See Russell, 753 F. App’x at 12 (finding

that response by the plaintiff that she “lacks sufficient knowledge or information to admit or deny”

a fact is insufficient under Local Rule 56.1)

Plaintiff’s papers also do not include additional numbered “paragraphs

containing…separate, short and concise statement[s] of additional material facts as to which it is

contended that there exists a genuine issue to be tried.” Local Rule 56.1(b). Instead, Plaintiff

simply makes factual assertions throughout his opposition brief. For some of these assertions,

Plaintiff cites to the record. For other factual assertions, no citation is provided.

Given Plaintiff’s deficient response to the motion, the Court deems admitted all the factual

assertions in Defendant’s 56.1 that are supported by admissible evidence in the record. The Court

has independently reviewed the factual assertions set out in Defendant’s 56.1 Statement and the

evidence Defendant cited in support of those factual assertions. The Court deems admitted all

factual assertions from Defendant’s 56.1 statement that are supported by the evidence Defendant

cites. Those admitted and undisputed facts are set forth below. The Court does not consider

additional factual assertions made in Plaintiff’s brief as Plaintiff failed to comply with Local Rule

56.1(b).

2. Facts Deemed Admitted

Plaintiff was born in 1956 and self-identifies as Jewish. (Pl. 56.1 Statement (“Pl. 56.1”) ¶

1.) Def. 56.1 Statement (“Def. 56.1”) ¶ 1.) He began his employment with Allstate Insurance

Company as a Financial Specialist on December 28, 2018. (Id. ¶ 2.) This position was entirely

commission based. (Id. ¶ 3.)

Plaintiff was required to pass the FINRA Series 6 and 63 exams within three months of

starting his employment. (Def. 56.1 ¶ 19.) Plaintiff, however, did not pass the FINRA Series 63

exam. (Id.)

Plaintiff’s employment ultimately ended in August 2019. Plaintiff did not sell a single

insurance policy during his eight-month tenure with Allstate. (Pl. 56.1 ¶ 20.)

Plaintiff initially reported to Ivan Holtzer and was responsible for the Queens region. (Pl.’s

56.1 ¶ 4.) Holtzer provided Plaintiff with two leads. (Def. 56.1 ¶ 5.) In January 2019, Vincent

Ferrara became Plaintiff’s manager. (Def. 56.1 ¶ 6.)

Ferrara held monthly in-person meetings with his sales staff. (Def. 56.1 ¶ 7; Ferrara Dep.

34–36.1) (In February, Ferrara asked Plaintiff why he was not writing any business, and Plaintiff

did not have an explanation. (Def. 56.1 ¶ 9.) Although Plaintiff was introduced to Michael Kalkin

to assist with his sales, Plaintiff soon stopped showing up to Mr. Kalkin’s location and only

contacted one client. (Id. ¶ 10.)

In March 2019, Ferrara called to check-in with Plaintiff.2 (Def. 56.1 ¶ 11.) Plaintiff

explained that he was in California taking care of family business. (Def. 56.1 ¶ 11.) Ferrara also

1 Although the two pages of deposition testimony cited by Defendant—pages 26 and 27—do not concern meetings,

on pages 34 and 35 of his deposition Ferrara addresses meetings. (Ferrara Dep. 34–36.)

2 Defendant’s 56.1 Statement asserts that this call happened in “May 2019.” (Def. 56.1 ¶ 11.) The testimony cited

in Defendant’s 56.1 Statement does not state that this conversation occurred in May 2019. However, Ferrara indicates,

on page 61, and at other points in his deposition, that the conversation occurred in March 2019. (See Ferrara Dep. 54,

61–63.)

brought up the fact that Plaintiff did not yet have his securities license. (Def. 56.1 ¶ 13; Pl. 56.1 ¶

13.) After this call, Plaintiff did not respond to any of Ferrara’s texts, emails, or phone calls, nor

did he attend weekly or monthly meetings. (Def. 56.1 ¶ 14.)

On August 12, 2019, Ferrara sent an email to Nancy Feustel—an employee in Human

Resources (“HR”)—stating that Plaintiff had disappeared. (Def. 56.1 ¶ 15.) Feustel wrote to

Plaintiff on August 13, 2019, requesting that Plaintiff appear for a meeting on August 15, 2019, or

Allstate would consider his employment voluntarily terminated. (Def. 56.1 ¶ 16.) Feustel then

emailed Plaintiff on August 15, 2019, requesting that Plaintiff appear for a meeting on August 19,

2019, or Allstate would consider his employment voluntarily terminated. (Def. 56.1 ¶ 17.)

Plaintiff, however, did not attend either meeting. (Def. 56.1 ¶ 19.)

Plaintiff’s employment was terminated due to job abandonment on August 19, 2019. (Def.

56.1 ¶ 21.)

B. Additional Undisputed Facts Based on a Review of the Entire Record

Assuming arguendo that the Court should still review the entire record, additional facts

from the entire record are set below.

Plaintiff contends that he did not receive sufficient leads to allow him to earn any

commissions and was ignored by his supervisor, who, according to Plaintiff, told Plaintiff that he

would not have hired an “old Jewish guy” for Plaintiff’s territory in Queens. Ferrara maintains

that Plaintiff did not receive additional leads because he stopped communicating with Ferrara and

failed to obtain the required Series 63 license to sell securities. As for Plaintiff’s termination,

Allstate contends that Plaintiff was ultimately terminated because he abandoned his job and

ignored directives to attend meetings.

1. Plaintiff’s Hiring and Initial Employment

Ivan Holtzer, a manager at Allstate, recruited Plaintiff in 2018 and hired Plaintiff in late

December 2018. (Pl. Dep. 38–42, 45.) Plaintiff testified that, prior to being hired, Holtzer told

Plaintiff that he “[p]redominantly” wanted Plaintiff to sell life insurance and that Plaintiff “could

also sell other products but his goal was for me to sell life insurance.” (Pl. Dep. 40.) Upon his

hiring, Plaintiff initially reported to Holtzer and was responsible for the Queens region. (Pl. Dep.

45.)

Plaintiff attended a week of training in Chicago at the end of January 2019. (Pl. Dep. 48–

49.) Before Plaintiff left for the training, Holtzer told Plaintiff that he was leaving his position and

that Vincent Ferrara would now become Plaintiff’s manager and direct supervisor. (Pl. Dep. 47–

49.) Upon Plaintiff’s return from Chicago, he worked under Ferrara. (Pl. Dep. 48.) Ferrara—who

was already supervising the salesmen in Nassau and Suffolk Counties—took over the Queens

territory from Holtzer. (Ferrara Dep. 18.)

Plaintiff was required to pass the FINRA Series 6 and Series 63 examinations within three

months of starting his employment.3 (Ferrara Dep. 62–63; Def. Ex. B.) Plaintiff passed the Series

6 exam at some point, but never passed the Series 63 exam before being terminated in August

2019. (See Pl. Dep. 88–89 (“I believe I had the Series 6 in February maybe.”).)

3 In Plaintiff’s response to Defendant’s 56.1 Statement, Plaintiff asserts, without citation to any evidence, that this

factual assertion is “disputed.” However, Plaintiff’s only substantive response to Paragraph 19 is that “Defendant has

produced to [sic] evidence that Plaintiff would be terminated be terminated if this exam was not passed.” (Pl.’ 56.1 ¶

19.) Additionally, Plaintiff says nothing about the Series 63 exam in his brief. There is ample, undisputed, evidence

that Plaintiff was required to pass his Series 6 and Series 63 exams. (Ferrara Dep. 62–63; Def. Ex. B at 3.) Plaintiff

appears to downplay the importance of selling products that required FINRA licenses, citing Holtzer’s statement that

Plaintiff would predominantly sell life insurance. There is, however, no evidence that Holtzer ever told Plaintiff that

he did not need to pass these exams. Moreover, when Plaintiff was hired, Holtzer would have had no reason to believe

that Plaintiff would be unable to pass these exams—Plaintiff previously held Series 6 and Series 63 licenses, but both

had lapsed before hiring. (Pl. Dep. 22–23.)

2. Leads Provided to Financial Specialists

Independently owned Allstate sales offices sell property and casualty insurance. (Ferrara

Dep. 10, 27.) At their depositions, Plaintiff and Ferrara sometimes referred to these sales offices

as “stores.”

Ferrara would introduce financial specialists to the owners of Allstate sales offices.

(Ferrara Dep. 17–18, 28.) Financial specialists were then supposed to sell life insurance and other

products to the customers of those Allstate offices. (Ferrara Dep. 17–18, 28.) A financial specialist

was not allowed to solicit the customers of a sales office unless Ferrara gave them permission and

introduced them to the owner of that sales office. (Pl. Dep. 55–57.) Specialists could work with

more than one sales office. However, once Ferrara introduced a specialist to a specific office

owner, other specialists could not solicit that office’s customers. (Ferrara Dep. 28.) Ferrara

decided which financial specialists to introduce to specific owners.4 (Ferrara Dep. 30.)

Ferrara would introduce newly hired financial specialists, such as Plaintiff, to only two or

three owners during their first year. (Ferrara Dep. 76–77.) There is no evidence in the record that

any newly hired financial specialists ever received more than two or three owner introductions

during their first year.

During Plaintiff’s eight-month tenure at Allstate, he was introduced to two store owners in

Queens and was supposed to sell products to customers of those owners. (Ferrara Dep. 38, 65,

73–74.)

4 If a veteran specialist already had an established relationship with a sales office, that specialist was allowed to

maintain that relationship even if Ferrara had not originally made the introduction. (Ferrara Dep. 28.)

Holtzer had introduced Schwartz to one store owner named Martin Levy. (Ferrara Dep.

38.) Schwartz was also introduced to another store owner named Michael Kalkin.5 (Ferrara Dep.

38–39.)

At some point after these introductions were made, Ferrara spoke with Levy and Kalkin.

They both told Ferrara that they were working with Plaintiff, who would come into the office “a

few hours a week,” but “nothing is happening.” (Ferrara Dep. 55.) In February 2019, Levy called

Ferrara and told him that he had not seen Schwartz in a while.6 (Ferrara Dep. 75.)

As for Kalkin, Plaintiff met with him a few times and may have called one of Kalkin’s

clients. (Pl. Dep. 66–67, 92.)

Ultimately, Plaintiff did not sell a single product during his eight-month tenure at Allstate.

Plaintiff complains that Ferrara discriminated against him by not introducing him to

additional owners. Ferrara testified that he did not consider referring any additional owners to

Plaintiff because: (1) he did not hear from Plaintiff again after speaking with him on the phone in

March; and (2) Plaintiff had not completed his Series 63 exam. (Ferrara Dep. 66.)

3. Meetings

Ferrara held monthly in-person meetings in-person with his sales staff. (Ferrara Dep. 34–

36, 39; Pl. Dep. 48–49.)

5 Plaintiff admits that he was introduced to Kalkin and subsequently communicated with him. It is not clear whether

Holtzer or Ferrara made this introduction. Plaintiff testified that Ferrara may have introduced him to Kalkin. (Pl.

Dep. 66 (“[Kalkin] may have been the only individual that Ferrara introduced me to, I believe.”); id. at 73 (“Ferrara

never introduced me to anyone other than Kalkin.”). Ferrara testified that Plaintiff was first introduced to Kalkin by

Holtzer. (Ferrara Dep. 39, 44–45.)

6 At his deposition, Plaintiff did not dispute Ferrara’s testimony about Levy. Plaintiff did not deny that Holtzer

introduced him to Levy. Nor did Plaintiff deny that he stopped interacting with Levy in February. It is also notable

that Plaintiff has not offered any deposition testimony from Levy, Kalkin, or Holtzer.

Ferrara testified that Plaintiff attended two in-person meetings—a monthly meeting in

January and a meeting about variable annuities that was also held in January.7 (Ferrara Dep. 39,

46.) According to Ferrara, Plaintiff failed to attend any subsequent in-person meetings. (Ferrara

Dep. 49–50.) As discussed infra, Ferrara also testified about phone calls he had with Plaintiff in

February and March. Ferrara maintains that he never spoke to Plaintiff again after the March

phone call.

Plaintiff disputes some of Ferrara’s testimony about the meetings. Plaintiff insists that he

attended at least three in-person meetings with Ferrara. Plaintiff testified that he attended three

of Ferrara’s monthly meetings—one in January, one in February, and one that occurred in either

late February or early March.8 (Pl. Dep. 48–54.) Plaintiff also testified that he and Ferrara both

attended a large regional meeting, which may have been held in April. (Pl. Dep. 57–58, 68, 92.)

According to Plaintiff, at the in-person meetings he attended, he tried to set up an individual

meeting with Ferrara. At the end of some of the group meetings, Plaintiff would also ask Ferrara

to introduce him to store owners. (Pl. Dep. 56.) At the end of the meeting in early February,

Plaintiff approached Ferrara and asked when they could meet. (Pl. Dep. 50.) Ferrara responded

that he had an obligation and needed to leave, and that he would call or email Plaintiff. (Pl. Dep.

7 According to Ferrara, at this meeting, he spoke with Plaintiff and told him that he could not sell these annuities

because he had not yet passed his Series 6 exam. (Ferrara Dep. 46.) Ferrara also told Plaintiff that should be selling

life insurance through “Martin [Levy] and Michael [Kalkin]” until he obtains his license. (Id.) At his deposition,

Plaintiff did not deny that he attended a meeting concerning annuities and had this conversation with Ferrara.

8 In his opposition brief, Plaintiff asserts that he attended every group meeting between January and May. (Pl. Mem.

at 5.) None of the deposition testimony Plaintiff cites in his brief indicates that he attended a monthly meeting in

April. While not specifically cited in Plaintiff’s brief, the Court notes that Plaintiff did testify that, after the meeting

in late February or early March, Plaintiff and Ferrara both attended a large regional meeting—which may have been

held in April—where they spoke again. (Pl. Dep. 57–58, 68, 92.) At his deposition, Plaintiff also gave vague

testimony about possibly attending a meeting in May, but he could not actually recall when this meeting occurred.

(See Pl. Dep. 92 (“It may have gone on through May. June I know it was over. But it may have been an early May

meeting. I’m not sure. I don’t remember the dates”); Pl. Dep. 58 (“Maybe [I attended] one more meeting in May or

June.”) Based on this evidence, a reasonable jury could not find that Plaintiff attended a meeting in May. Even

assuming arguendo that a jury could conclude that Plaintiff attended a meeting in May, Defendant would still be

entitled to summary judgment.

49–50.) At the end of the next meeting, Plaintiff approached Ferrara again and Ferrara again told

Plaintiff that he would call him to set up a meeting. (Pl. Dep. 51–52.) According to Plaintiff, he

had similar interactions with Ferrara at every meeting he attended from February onward. (Pl.

Dep. 54–55, 58–59.)

4. Ferrara’s Comment About Plaintiff’s Age and Religion

Plaintiff maintains that when he spoke to Ferrara at the end of either the second or third

group meeting, Ferrara asked Plaintiff if he spoke Spanish. (Pl. Dep. 54–55.) When Plaintiff

responded that he only spoke Yiddish, Ferrara said “I don’t think I would have hired an old Jewish

guy for my territory.”9 (Pl. Dep. 55.)

5. Ferrara’s Phone Calls with Plaintiff

At one point in his deposition, Plaintiff states that although Ferrara told him on multiple

occasions that he would set up an individual “meeting” with Plaintiff, Ferrara never set up this

meeting. (Pl. Dep. 55, 58.) However, Plaintiff admitted at his deposition that he did have at least

one phone call with Ferrara. (Pl. Dep. 59 (“There may have been a phone call.”); Pl. Dep. 93 “He

would call me. I would call him. Somewhere along the line we did speak”).)

Ferrara testified that, sometime in February, Ferrara spoke to Plaintiff and asked why he

had not made any sales. (Ferrara Dep. 45.) Plaintiff responded that he had not been able to get

through to any clients. (Ferrara Dep. 45.) As noted earlier, sometime in February 2019, Levy had

called Ferrara and told Ferrara that he had not seen Schwartz in a while. (Ferrara Dep. 75.)

Ferrara also testified that, after reaching out to Plaintiff multiple times, he finally got

Plaintiff on the phone again sometime in March 2019. (Ferrara Dep. 51, 61.) When Ferrara asked

Plaintiff “what’s going on,” Plaintiff told Ferrara that he was in California to deal with “personal

9 Ferrara denies making this comment. (Ferrara Dep. 47.)

things.” (Ferrara Dep. 61.) Ferrara responded that “it would have been nice if you let me know

that.” (Id.) When Ferrara asked Plaintiff if he had let the “agents”—Kalkin and Levy—know that

he went to California, Plaintiff replied that he had not. (Id.) Ferrara told Plaintiff that he should

reach out to “both” of the agents and let them know. (Id.) Ferrara also asked Plaintiff when he

would be returning from California and Plaintiff replied that he did not know. (Id.) Ferrara told

Plaintiff to get in touch with him when returned from California. (Id.) Ferrara also brought up the

fact that Plaintiff did not yet have his securities license. (Id. at 62–63; Def. 56.1 ¶ 13; Pl. 56.1 ¶

13.)

Plaintiff did not dispute Ferrara’s account of these two phone calls at his deposition. In

fact, Plaintiff admits that he had at least one phone call with Ferrara and that, as Ferrara recounted,

Plaintiff was, indeed, in California. (Pl. Dep. 59 (“There may have been a phone call.”); id. at 93

“He would call me. I would call him. Somewhere along the line we did speak”); Pl.’s 56.1 ¶ 11.)

Ferrara maintains that Plaintiff never contacted him again after this phone call in March.

(Ferrara Dep. 62, 67.) Plaintiff, however, testified that he attended at least one meeting with

Ferrara that would have been after this call.

6. Plaintiff’s August 2019 Termination

On August 5, 7, 8, and 9, Ferrara left messages for Plaintiff, who did not respond to the

messages. (Def. Ex. D Letter; Pl. Dep. 91 (not disputing Ferrara’s calls).) On August 8, 2019,

Ferrara emailed Allstate’s HR Department to discuss Plaintiff’s possible termination. (Def. Ex.

E.) In an August 12, 2019 email to HR, Ferrara recounted that: (1) Plaintiff had made no sales

since he was hired; (2) Plaintiff had failed to pass his Series 63 exam within 90 days; and (3)

Plaintiff did not respond to Ferrara’s communications. (Id.)

Nancy Feustel, who worked in Allstate’s HR department, then sent Plaintiff a letter dated

August 13, 2019 outlining various deficiencies in his performance, including his failures to

respond to Ferrara and the fact that Plaintiff “disappeared” from Kalkin’s sales office after showing

up for a few weeks. (Def. Ex. E.) Feustel’s letter informed Plaintiff he had to attend a meeting

with Ferrara on August 15 and that if he failed to attend the meeting, Allstate would consider his

employment to be voluntarily terminated. (Id.) Plaintiff testified that after he received an email

from Feustel about this meeting with Ferrara, he contacted her and informed her that he would not

attend the meeting because it was a “hostile work environment.” (Ferrara Dep. 65–66, 70–71.)

After Plaintiff failed to attend this meeting, Feustel emailed Plaintiff, directed him to attend

a meeting with Ferrara on August 19, and again told him that failure to attend would be considered

a voluntary termination. (Def. Ex. F.) Plaintiff failed to attend that meeting as well. On August

21, 2019, Allstate sent Plaintiff a letter informing him that Allstate deemed his actions to be a

voluntary resignation. (Def. Ex. G.)

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Caretta, 477 U.S. 317, 322

-----------------------

(1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986). The

movant bears the burden of demonstrating that “no genuine issue of material fact exists.” Marvel

Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citations omitted). “An issue of fact

is ‘material’ for these purposes if it ‘might affect the outcome of the suit under the governing law,’”

while “[a]n issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.’” Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d

Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

When determining whether any material facts are in dispute, the court “must examine the

evidence in the light most favorable to, and draw all inferences in favor of, the non-movant[.]”

Marvel Characters, 310 F.3d at 286 (citing Matsushita, 475 U.S. at 587; Weinstock v. Columbia

Univ., 224 F.3d 33, 41 (2d Cir. 2000)). To defeat a properly supported motion for summary

judgment, “the nonmoving party must come forward with ‘specific facts showing that there is a

genuine issue for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)). The

nonmoving party, however, “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Id. at 586 (citations omitted). Mere conclusory allegations,

speculation, or conjecture will not avail a party resisting summary judgment. See Shannon v. New

York City Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003). The non-moving party must produce

“significant probative evidence” demonstrating that a factual dispute does in fact exist, otherwise

summary judgment is appropriate. Anderson, 477 U.S. at 249.

B. Standard for Religious and Age Discrimination Claims

Under the Title VII, the ADEA, and the NYSHRL, employers cannot discriminate against

employees based on their religion or their age. 42 U.S.C. § 2000e–2(a)(1); 29 U.S.C. § 621 et

seq., see also N.Y. Exec. Law § 296. Claims of employment discrimination brought pursuant to

Title VII, the ADEA and NYSHRL are analyzed under the familiar burden-shifting approach set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). See Tolbert v. Smith,

790 F.3d 427, 434 (2d Cir. 2015); Fu v. Consol. Edison Co. of New York, Inc., 855 F. App’x 787,

789 (2d Cir. 2021).

“Under this framework, a plaintiff must first establish a prima facie case

of discrimination.” Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010) (citation

omitted). This means Plaintiff must show that “(1) she is a member of a protected class; (2) she is

qualified for her position; (3) she suffered an adverse employment action; and (4) the

circumstances give rise to an inference of discrimination.” Vega v. Hempstead Union Free Sch.

Dist., 801 F.3d 72, 83 (2d Cir. 2015).

“Once a plaintiff meets this initial burden, the burden then shifts to the defendant to offer

a legitimate nondiscriminatory reason” for the adverse employment action. Ruiz, 609 F.3d at 491.

If the defendant meets this low bar, “[t]he plaintiff then has the opportunity to prove ‘by a

preponderance of the evidence that the legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination.’” Back v. Hastings on Hudson Union Free Sch.

Dist., 365 F.3d 107, 123 (2d Cir. 2004) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 253 (1981)). “‘[T]he ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all times with the plaintiff.’” Reeves v.

Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (quoting Burdine, 450 U.S. at 253). “[A]

reason cannot be proved to be a ‘pretext for discrimination’ unless it is shown both that the reason

was false, and that discrimination was the real reason” for the employer’s decision. St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

For his religious discrimination claims, Plaintiff must ultimately prove that his religion was

a motivating factor behind the adverse action. Vega, 801 F.3d at 5. For his age discrimination

claims, Plaintiff must ultimately prove that his age was a but-for cause of the adverse action. Gross

v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).

“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the

[employer’s] explanation that the employer is dissembling to cover up a discriminatory purpose.”

Reeves, 530 U.S. at 147. Where a plaintiff offers evidence of pretext, courts must take a “case-

by-case approach” and examine “the entire record to determine whether the plaintiff could satisfy

his ‘ultimate burden of persuading the trier of fact that the defendant intentionally discriminated

against the plaintiff.’” Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (quoting Reeves,

530 U.S. at 143). Whether summary judgment is appropriate depends on “a number of factors,”

including “the strength of the plaintiff’s prima facie case, the probative value of the proof that the

employer’s explanation is false, and any other evidence that supports the employer’s case and that

properly may be considered” on a motion for summary judgment. Reeves, 530 U.S. at 148–49.

As the Court in Reeves noted, even if “the plaintiff has established a prima facie case and set forth

sufficient evidence to reject the defendant’s explanation,” judgment as a matter of law may still be

appropriate, where, for instance, “the record conclusively revealed some other, nondiscriminatory

reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as to whether

the employer’s reason was untrue and there was abundant and uncontroverted independent

evidence that no discrimination had occurred.” Id. at 148.

C. Analysis of Plaintiff’s Discrimination Claims

Plaintiff contends that he was discriminated against based on his age and religion.

However, in his opposition brief, Plaintiff does not assert that he is pursuing a discrimination claim

based on his termination or alleging that he was constructively discharged. Instead, Plaintiff

simply asserts that the adverse action he suffered was Ferrara’s refusal to provide him with leads

for six months. (Pl.’s Mem. at 9.) Accordingly, Plaintiff has waived and abandoned any claims

that his termination was discriminatory or that he was constructively discharged because of his

religion or age. In any event, Plaintiff does not have viable discrimination claims premised on

Ferrara’s refusal to provide him with additional leads or on his ultimate termination. Below, the

Court analyzes Plaintiff’s claims based on both the facts that have been deemed admitted and the

full factual record.

1. Analysis of the Discrimination Claims Based on the Facts that Have Been Deemed

Admitted

Given Plaintiff’s failure to properly dispute the facts set out in Defendants’ 56.1 statement,

the Court has deemed admitted certain facts. Additionally, Plaintiff has not submitted a

counterstatement of any additional facts that complies with Local Rule 56.1.

Based on this record, Plaintiff cannot establish that Ferrara’s refusal to provide him with

additional leads constitutes an adverse action, (see discussion infra), or that Ferrara’s failure to

provide Plaintiff with additional leads was motivated or caused by Plaintiff’s age or religion.

Plaintiff also cannot establish that he was constructively discharged. Additionally, even

assuming that Plaintiff was terminated, Plaintiff’s discrimination claims about his termination

fail.10 Based on this record, Plaintiff cannot show that he was discriminated against based on his

religion or his age. Indeed, these undisputed facts affirmatively indicate that Plaintiff was

terminated due to job abandonment. See Genova v. Cnty. of Nassau, 851 F. App’x 241, 244 (2d

Cir. 2021) (affirming district court’s grant of summary judgment where, after Plaintiff failed to

file a 56.1 statement, the district court deemed admitted the fact that plaintiff was terminated for

poor work performance and then concluded, based on this admitted fact, that the plaintiff could

not “rebut the County’s proffered legitimate nondiscriminatory reason for his termination as

pretext”).

10 It is not clear that Plaintiff was actually terminated by Allstate. Rather, he appears to have resigned by abandoning

his job. In any event, even assuming that the circumstances here could still qualify as a termination, Plaintiff’s claims

about his “termination” all fail.

Accordingly, the Court grants Defendant summary judgment on Plaintiff’s discrimination

claims. As explained below, even if the Court were to consider the entire record, Defendant would

still be entitled to summary judgment.

2. Analysis of Plaintiff’s Discrimination Claims Based on the Entire Record

i. Ferrara’s Refusal to Provide Additional Leads

Plaintiff contends that Ferrara’s refusal to provide him with additional leads constitutes an

adverse employment action. The Court, however, finds that this was not an adverse employment

action and, even if it were, Plaintiff cannot show that Ferrara’s refusal was discriminatory.

“[T]o establish a materially adverse employment action on the basis of a denial of a lead,

a commission-compensated plaintiff must establish that there was an unequal distribution of

lucrative leads or that she had a basis for entitlement to that particular lead.” Capek v. BNY

Mellon, N.A., No. 15-CV-4155, 2018 WL 1353269, at *7 (S.D.N.Y. Mar. 15, 2018). Here, a

reasonable jury could not find that there was an unequal distribution of leads or that Plaintiff had

an entitlement to a particular lead.

Ferrara would introduce new financial specialists to only two or three owners during their

entire first year. (Ferrara Dep. 76–77.) The record does not indicate that any financial

specialists—whether newly hired or long-tenured—received more than two or three introductions

to store owners in a single year. Of course, Plaintiff did not even work at Allstate for a full year.

He was formally employed for less than eight months. The record does not indicate that any newly

hired financial specialists received more than two introductions during the first eight months of

their employment. Moreover, Plaintiff never passed his Series 63 exam. There is no evidence in

the record that any newly hired financial specialist received more than two introductions before

passing all required exams. As such, Plaintiff cannot show that there was an unequal distribution

of leads. See Matias v. Sears Home Improvement Prod., Inc., No. 08-CV-340, 2009 WL

10670308, at *5 (M.D. Fla. Sept. 9, 2009) (finding plaintiff did not suffer an adverse action when

he “offered no evidence relating to the amount of prime leads he received as compared to other

consultants”) aff’d, 391 F. App'x 782 (11th Cir. 2010).

Plaintiff’s brief notes that Ferrara gave “leads to other employees in a similar position to

Plaintiff, and in fact was looking to hire other employees.” (Pl. Mem. at 7.) In support, Plaintiff

cites only to an admission by Ferrara that he hired at least one new financial specialist between

January 2019 and August 2019. (Ferrara Dep. 70–71.) This evidence does not help Plaintiff

establish that he suffered an adverse action. First, there is no evidence indicating when, exactly,

these new employees were hired.11 Second, any new employees were hired to cover Suffolk

County and Plaintiff had only informed Ferrara that he would work in Nassau County. (Ferrara

Dep. 47, 71.) There is no evidence that, during Plaintiff’s tenure, there were sales office owners

in Queens and Nassau County that Ferrara could have introduced to Plaintiff. Third, even

assuming arguendo that Plaintiff could have been considered for owner introductions in Suffolk

County, there is no evidence about the number of introductions provided to specialists who were

hired between January and August.12 Given the above, Plaintiff cannot show that there was an

unequal distribution of leads and, thus, cannot establish that he suffered an adverse employment

action.

There is also no evidence about the quality of leads provided to other specialists, which

makes it impossible to compare Plaintiff and the other specialists on that basis. Cf. Matias v. Sears

11 Notably, Plaintiff made no efforts to communicate with Ferrara for months prior to his termination and, in August,

ignored Ferrara’s communications and Feustel’s orders that he attend meetings.

12 Plaintiff seems to assume that any available leads should have been distributed to him before Allstate could hire

new specialists and that new specialists should only be hired when existing specialists could not handle any additional

work. There is, however, nothing in the record indicating Ferrara or Holtzer followed such a practice.

Home Improvement Prod., Inc., 391 F. App’x 782, 786 (11th Cir. 2010) (finding no adverse action

where Plaintiff failed to establish that the leads he received were from materially less affluent

prospects). Additionally, there is undisputed evidence in the record that Levy and Kalkin reported

to Ferrara that Plaintiff was not diligently pursuing their customers and stopped showing up.

Moreover, even putting that evidence aside, Plaintiff’s claim that Kalkin was a “dead” lead does

not help him establish that he suffered an adverse action or, ultimately, that he was discriminated

against. Even assuming that Ferrara was the one who decided to give Plaintiff the “Kalkin” lead,13

there is nothing in the record to suggest that Ferrara knew this was a poor lead when he gave it to

Plaintiff. Ferrara had no prior experience in Queens and had only taken over the territory in

January 2019. (Ferrara Dep. 11–12, 18, 25.) And, the record does not contain any objective data

about Kalkin’s sales office that would have indicated to Ferrara that this was a poor lead prior to

Plaintiff’s introduction to Kalkin.

Even if Plaintiff could establish that Ferrara’s refusal to provide additional leads constitutes

an adverse action, a reasonable jury could not find that this action was discriminatory. Ferrara

testified that he did not consider referring any additional owners to Plaintiff because: (1) he did

not hear from Plaintiff again after speaking with him on the phone in March; and (2) Plaintiff had

not completed his Series 63 exam. (Ferrara Dep. 66.) Additionally, as discussed above, Ferrara

also explained that he would only introduce new financial specialists to two or three store owners

during their first year. (Ferrara Dep. 76.)

Even assuming arguendo that Ferrara’s comment raises an inference of discrimination for

purposes of a prima facie case, Plaintiff cannot ultimately establish that his failure to receive

13 To the extent that Holtzer—rather than Ferrara—initially provided this lead, Plaintiff does not claim that Holtzer

discriminated against him. Notably, Holtzer—who recruited and hired Plaintiff—was also the manager responsible

for introducing Plaintiff to Levy.

additional introductions was motivated by his religion or caused by his age. Although there is a

factual dispute about whether Plaintiff attended certain meetings, Ferrara also explained that he

did not consider referring additional owners to Plaintiff because Plaintiff had not yet passed his

Series 63 exam. It is undisputed that Plaintiff did not pass this exam within 90 days and had still

not passed this exam when he was terminated in August. The fact that Plaintiff had not passed his

required Series 63 exam was, itself, an independent and compelling reason to not provide Plaintiff

with any additional introductions. Plaintiff had already been given two introductions. Ferrara had

numerous other financial specialists working for him and—even if Ferrara had another unaffiliated

owner who he could have introduced to Plaintiff—it would have made little sense to provide

Plaintiff with another introduction when Plaintiff had not yet passed his Series 63 exam. It is also

notable that there is no evidence in the record that any newly hired financial specialist was given

more than two introductions prior to the specialist passing all of the required exams. This evidence

does not indicate that Ferrara’s reasons were a pretext for religious or age discrimination.

Based on the evidence above, a reasonable jury could not find that Ferrara’s refusal to

provide Plaintiff with additional owner introductions was motivated by his religion or because of

his age.

ii. Termination

As explained earlier, Plaintiff abandoned and waived any claim that his termination was

discriminatory. In any event, any claim that Plaintiff’s termination was discriminatory fails.

Even assuming arguendo that Plaintiff has raised an inference of discrimination for

purposes of a prima facie case, he cannot ultimately establish that his termination was motivated

by his religion or caused by his age.

Plaintiff cannot establish that Allstate’s proffered reason for his termination was pretextual.

After Plaintiff failed to respond to multiple communications from Ferrara in early August, Plaintiff

was directed to attend two meetings and was informed that failure to attend would result in his

termination. Plaintiff failed to appear and was terminated for job abandonment. No reasonable

jury could find that Plaintiff’s termination was motivated by his religion or caused by his age.

D. Analysis of Plaintiff’s Hostile Work Environment Claims

1. Plaintiff Waived and Abandoned His Hostile Work Environment Claim

Plaintiff’s complaint alleges a claim for a hostile work environment. Plaintiff, however,

waived and abandoned this claim by failing to adequately address and argue this claim in his brief.

In the context of discussing Plaintiff’s discrimination claims, Plaintiff sets out the four elements

that a plaintiff must meet to establish a prima facie case of discrimination, including that the

plaintiff suffered an adverse action and that the adverse action occurred under circumstances that

give rise to an inference of discrimination. (Pl. Mem. at 8–11.) In the section that discusses the

inference of discrimination, Plaintiff also quotes, without further discussion, the standard for

evaluating hostile work environment claims. (Id. at 10–11.) After setting out this standard,

Plaintiff does not assert that he was subjected to a hostile work environment and or explain how

the facts of this case meet the standard for a hostile work environment. (Id. at 11.) Instead, Plaintiff

simply asserts that Ferrara’s antisemitic “comment, coupled with the lack of employment and

earning capabilities by a supervisor that did not hire Plaintiff proves discriminatory intent and

creates a clear question of fact requiring denial of this motion.” (Id.) This is not sufficient to raise

a hostile work environment claim. Accordingly, this claim is dismissed. In any event, any hostile

work environment claims also fail on the merits, whether based on the facts that have been deemed

admitted or the entire record.

2. Standard

To establish a hostile work environment, a plaintiff must show that “show that the conduct

she complains of: (1) ‘is objectively severe or pervasive—that is, . . . creates an environment that

a reasonable person would find hostile or abusive’; (2) ‘creates an environment that the plaintiff

perceives as hostile or abusive’; and (3) ‘creates such an environment because of the plaintiff’s

[protected characteristic].’” Langlois v. Hartford Bd. of Educ., 831 F. App’x 548, 551–52 (2d Cir.

2020) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)). The existence (or non-

existence) of a hostile work environment must be “measured by the totality of the circumstances.”

Chandler v. AMR Am. Eagle Airline, 251 F. Supp. 2d 1173, 1185 (E.D.N.Y. 2003)

(citing Williams v. County of Westchester, 171 F.3d 98, 100 (2d Cir. 1999). Among the factors

that courts consider are “the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with [the] employee's work performance.” Feingold v. N.Y., 366 F.3d 138, 150 (2d Cir.

2004) (internal Feingold, 366 F.3d at 150 (quoting Harris, 510 U.S. at 23).

3. Analysis

Plaintiff’s claim he was subjected to a hostile work environment based on his religion

and/or age clearly fails based on the facts have been deemed admitted.

Even if the Court were to consider the entire record, Plaintiff’s hostile work environment

claim consists, at best, of Ferrara’s single “old Jewish guy” comment, Ferrara’s failure to meet

individually with Plaintiff, and Ferrara’s refusal to provide Plaintiff with additional leads. A

reasonable jury could not find that this conduct was sufficiently objectively severe or pervasive to

create an environment that a reasonable person would find hostile or abusive. See Clarke v.

InterContinental Hotels Grp., PLC, No. 12 CIV. 2671, 2013 WL 2358596, at *10 (S.D.N.Y. May

30, 2013) (finding that the plaintiff failed to allege that her workplace was “sufficiently abusive”

where “her supervisors snubbed her; spoke to her rudely to her and insulted her worth ethic;

excessively scrutinized her work; and gave her more work to do than other employees”).

This conclusion is further buttressed by the Court’s earlier discussion concerning Ferrara’s

refusal to provide Plaintiff with additional leads. As stressed previously, Ferrara would introduce

new financial specialists to only two or three store managers during their entire first year. (Ferrara

Dep. 76–77.) The record does not indicate that Plaintiff received fewer (or lower quality)

introductions than any specialists with comparable tenure or similar licenses. Accordingly,

Defendants are entitled to summary judgment on Plaintiff’s hostile work environment claims.

4. Constructive Discharge

As explained earlier, Plaintiff waived and abandoned any potential constructive discharge

claim. Moreover, a constructive discharge claim would fail on the merits in any event.

“Where an alleged constructive discharge stems from an alleged hostile work environment,

a plaintiff ‘must show working conditions so intolerable that a reasonable person would have felt

compelled to resign.’” Fincher v. Depository Tr. & Clearing Corp., 604 F.3d at 725 (2d Cir. 2010)

(quoting Pa. State Police v. Suders, 542 U.S. 129, 147 (2004). “This standard is higher than the

standard for establishing a hostile work environment.” Fincher, 604 F.3d at 725.

As Plaintiff cannot establish a hostile work environment, any constructive discharge

premised on that allegedly hostile work environment claim necessarily fails. Moreover, any

constructive discharge claim also fails because the record indicates that Allstate was attempting to

set up a meeting between Ferrara and Plaintiff to re-establish a relationship. Plaintiff complains

that Ferrara failed to meet with him, (see Pl. Dep. 49–50), and then, when Allstate’s HR department

set up a meeting with Ferrara, Plaintiff did not show up.

E. Retaliation

1. Standard for Retaliation Claims

Title VII, the ADEA, and the NYSHRL prohibit retaliation against employees who engage

in protected activity under those statutes. 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d); N.Y. Exec.

Law § 296(e). These retaliation claims are analyzed under the essentially same burden-shifting

framework as Plaintiff’s discrimination claims. Ya-Chen Chen v. City Univ. of New York, 805

F.3d 59, 70 (2d Cir. 2015).

To establish a prima facie case of retaliation, plaintiff must demonstrate: “‘(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.’” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)

(quoting McMenemy v. City of Rochester, 241 F.3d 279, 282–83 (2d Cir. 2001)).

A plaintiff can establish a causal connection either: “‘(1) indirectly, by showing that the

protected activity was followed closely by discriminatory treatment, or through other

circumstantial evidence such as disparate treatment of fellow employees who engaged in similar

conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by

defendant.’” Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010) (quoting Gordon v. N.Y. City Bd.

of Educ., 232 F.3d 111, 117 (2d Cir. 2000)). “After the defendant responds with a non-retaliatory

reason for the adverse employment action, the plaintiff must prove “that the desire to retaliate was

the but-for cause of the challenged employment action.” Ya-Chen Chen, 805 F.3d at 70

(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).

2. Analysis

i. Overview

Plaintiff’s retaliation claims clearly fail based on the facts that been deemed admitted,

which do not even indicate that Plaintiff engaged in any protected activity. Additionally, those

facts affirmatively establish that Plaintiff was, in fact, terminated due to job abandonment.

Even if the Court were to consider the entire record, Plaintiff’s retaliation claims still fail.

First, Plaintiff’s brief asserts that he engaged in protected activity by “filing a claim for

discrimination with the EEOC on September 18, 2019.” (Pl.’s Mem at 12.) However, this

protected activity is not viable basis for a retaliation claim as Plaintiff’s employment ended on

August 21, 2019, before this filing with the EEOC.

Second, to the extent Plaintiff claims that he was retaliated against for a raising a complaint

with Allstate’s HR Department, such retaliation claims are meritless.

ii. Evidence of Plaintiff’s Alleged Complaint to HR

Before analyzing Plaintiff’s retaliation claim concerning his complaint to HR, it is helpful

to flesh out the relevant evidence on this issue in greater detail.

Plaintiff’s allegations about his purported complaint to HR are vague. Plaintiff’s complaint

in the instant litigation—which, of course, is not admissible evidence—alleges that:

[a]fter 8 months of not being provided any customer leads, Plaintiff

complained to Allstate Human Resources, specifically Nancy

Feustel. . . . Specifically, Plaintiff advised Ms. Feustel that he was

being subjected to a hostile work environment based on his religion

and age.

(Compl. ¶¶ 37–38.) Similarly, Plaintiff’s opposition brief states that he informed Feustel in August

2019 that he was subject to a hostile work environment. (Pl.’ Mem. at 3.) In support of his

retaliation claim, Plaintiff’s brief cites to a single page of deposition testimony. (See Pl. Mem. at

--

3, 7, 11–13.)

When questioned about this purported complaint at his deposition, Plaintiff gave the

following vague testimony:

Q: Okay. All right. So going back to interactions with Ms. Feustel, you said that there was

an email regarding setting up a meeting with Vince and that you had contacted her back

and said that you were not attending the meeting because it was a hostile work environment,

is that – that’s correct?

A: Right, yes.

Q: Were there any other interactions between you and Ms. Feustel?

A: I’m not sure how many times she communicated with me because it was always the

same conversation; no more than a handful. It was at the diminument of my employment.

Q: And was this all via email or did you talk to her over the phone?

A: If I had one phone conversation, it would have been the same conversation, same thing,

same tenor. It was unremarkable to me. So I don’t recall.

****

Q: Okay. All right. Can you look at Paragraph 36 [of the Complaint], please.

A: Yes, after eight months of not being provided any customer leads, plaintiff complained

to Allstate human resources, specifically Nancy Feustel.

Q. Now, is the complaint referenced in Paragraph 36 the email that you referenced

regarding not meeting with Ferrara because it was a hostile work environment?

A: Yeah.

Q: Were there any other communication that you were referencing from Paragraph 36?

A: No. Are you asking if I delineated to Feustel about Ferrara’s comment about my age

and Religion?

Q: No. I’m asking if there were any other communications other than the email that you

previously testified about to Ms. Feustel complaining about a hostile work environment?

A: It was -- the email and as I said, I may have had one phone conversation with her. I

Don’t recall.

Q: And you say it -- turning to Paragraph 36 that you advised Ms. Feustel that you were

being subjected to a hostile work environment based on your religion and age. Did you

ever specifically say that to her?

A: Feustel didn’t speak to me and I didn’t I didn’t contact her. I wasn’t proactively

contacting her. She spoke to me, I believe, after Ferrara determined that I was going to be

terminated and asked her to call me. That’s the genesis of my relationship with her. What

I said to her exactly, I don’t know. I don’t remember a hundred percent. At that point

already the relationship between myself and Allstate was over. I’m not sure what she was

trying to accomplish, but, you know, the job that I was told I had I knew I no longer had

and that’s when Feustel got in the middle and it was at the end of that relationship with

Allstate.

(Ferrara Dep. 65–66, 70–71 (emphasis added.)

As explained below, based on these facts, Plaintiff’s retaliation claims fail.

iii. Plaintiff Has Not Established the Second Element of His Prima Facie Case

An employee engages in protected activity “by opposing a practice made unlawful” by

Title VII. Galdieri–Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998).

“The ADEA contains a nearly identical provision prohibiting retaliation for complaining of

employment discrimination on the basis of age, see 29 U.S.C. § 623(d), and the same standards

and burdens apply to claims under both statutes.” Kessler v. Westchester Cnty. Dep’t of Soc.

Servs., 461 F.3d 199, 205 (2d Cir. 2006).

“[I]mplicit in the requirement that the employer have been aware of the protected activity

is the requirement that it understood, or could reasonably have understood, that the plaintiff’s

opposition was directed at conduct prohibited by” Title VII, the ADEA, and the NYSHRL.

Galdieri-Ambrosini, 136 F.3d at 292; see Pfizenmayer v. Hicksville Pub. Sch., 700 F. App’x 64,

65–66 (2d Cir. 2017).

Even if a reasonable jury could conclude that Plaintiff complained to Feustel about a

“hostile work environment” in August 2019, a jury could not conclude that Allstate was aware that

Plaintiff was complaining about a hostile work environment based on his age and religion. Plaintiff

did not testify that he mentioned—either orally or in an email14—Ferrara’s alleged “old Jewish

guy” comment to Feustel or said anything to her about his age or religion. Accordingly, Plaintiff

cannot establish the second element of his prima facie case. See Durant v. Union Loc. 237, No.

12-CV-1166, 2013 WL 1232555, at *8 (E.D.N.Y. Mar. 4, 2013) (“Plaintiff’s explicit invocation

of the term ‘hostile work environment’ in one complaint was not sufficient to put the [defendant]

on notice because nothing in that complaint suggested that the alleged harassment was based on

[the plaintiff’s] protected characteristics or any protected activity.”); Foster v. Humane Soc’y of

Rochester & Monroe Cnty., Inc., 724 F. Supp. 2d 382, 395 (W.D.N.Y. 2010) (“[T]he mere fact

that plaintiff used the term ‘hostile environment’ in her email to her supervisor is not enough; the

court must look at the substance of her complaint, not the terminology that she used.”); see also

Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 15 (2d Cir. 2013)

(finding that the plaintiff failed to plausibly allege that defendant would have understood her

complaints—which included complaints of “harassment”—were about discrimination based on

the plaintiff’s sex or some other trait).

iv. Plaintiff Cannot Establish that His Termination was Retaliatory

Plaintiff’s retaliation also fails because there is insufficient evidence to establish a causal

connection for purposes of a prima facie case and there is clearly insufficient evidence for a jury

to ultimately conclude that Plaintiff was terminated because he complained to Feustel.

Even assuming that Plaintiff was terminated (and did not simply resign by abandoning his

job), Plaintiff’s retaliation claims about his “termination” fail.

14 The record does not contain a copy of any email from Plaintiff complaining about a hostile work environment.

While temporal proximity is sometimes sufficient to establish a causal connection for

purposes of a prima facie case, when all of the circumstances are considered here, a reasonable

jury could not find that Plaintiff’s termination was retaliatory. Plaintiff’s deposition testimony

indicates that Feustel emailed him, and that in response to her email, Plaintiff complained—either

via email or orally—about a “hostile work environment.” That timing, however, does not suggest

retaliation.

Ferrara raised issues about Plaintiff’s deficiencies and performance with HR prior to

Plaintiff’s complaint. Feustel then became involved and directed Plaintiff to attend a mandatory

meeting. All of this occurred prior to Plaintiff’s complaint. Plaintiff only complained after Feustel

had already directed him to attend a mandatory meeting and warned him that failure to attend

would result in his termination. (See Def. Ex. D.) Given these circumstances, Plaintiff cannot

establish a causal connection based on temporal proximity.

Finally, Plaintiff cannot establish that Allstate’s proffered reason for his termination–

namely, that he abandoned his job by failing to attend the meetings in August—was a pretext for

retaliation. Plaintiff was directed to attend two meetings and was informed that failure to attend

would result in his termination. Plaintiff failed to appear and was terminated. No reasonable jury

could find that Plaintiff’s termination was caused by his protected activity.

III. CONCLUSION

For the reasons set forth above, the Court GRANTS Defendant’s motion for summary

judgment. The Clerk of Court is directed to close this case.

SO ORDERED.

Dated: March 31, 2023

Central Islip, New York /s/ (JMA)

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE