Claud v. Brown Harris Stevens Residential Sales, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Shauncy Claud, No. 2:18-CV-01390-NRM-ST

Plaintiff, Findings of Fact and

Conclusions of Law

v.

Brown Harris Stevens of The

Hamptons, LLC,

Defendant.

NINA R. MORRISON, United States District Judge:

On June 30, 2017, Plaintiff Shauncy Claud’s emerging career in the

Hamptons real estate industry came to a sudden and unexpected halt. Just

eight months earlier, she had become the only Black agent associated with

Brown Harris Stevens of the Hamptons (“BHSH”), a prominent real estate

firm with six offices in the region. Born and raised in Southampton, Claud

had the ambition, interpersonal skills, and local contacts that were well

suited to her chosen career. But after a single phone call in which a

previously unknown third party allegedly complained to BHSH’s senior

executive about Claud’s “rudeness,” Claud was summarily terminated. She

was not asked by anyone at BHSH to provide her version of what may have

transpired with the disgruntled caller, nor was she given a reason for her

sudden firing. Instead, despite an otherwise-unblemished record over the

preceding eight months, she was told only in a curt email that the firm was

“not the right fit” for her.

In March 2018, Claud sued BHSH under 42 U.S.C. § 1981. She

asserted, inter alia, that she was treated differently because of her race than

were similarly situated White agents at the firm, and that her termination

was an act of retaliation for a complaint she had made to BHSH’s senior

executive manager in the region about an apparent pattern of race

discrimination by her direct supervisor, which Claud had presented in a

private meeting with a senior executive just two weeks before she was fired.

After discovery, BHSH moved for summary judgment, and Judge

Dennis R. Hurley granted the motion in part and denied it in part, finding

that there existed a genuine disputed issue of material fact on Claud’s

retaliatory termination claim. See Summ. J. Op., ECF No. 34. This case was

reassigned to me in October 2022. I presided over a bench trial between

February 8–10, 2023, and now issue these Findings of Fact and Conclusions

of Law.

As set forth below, I find that Claud has readily met her burden of

proving that BHSH’s termination was retaliatory, in direct violation of 42

U.S.C. § 1981. To be clear, under the terms of her Independent Agent

Agreement (“Agreement”) with BHSH, Claud was an independent contractor

who could be fired at will for any non-discriminatory reason, even an

arbitrary one. Nonetheless, federal law protects a plaintiff who engages in a

protected activity—here, complaining of racial discrimination by a

supervisor—and is retaliated against as a result. The only issue here is

whether Claud was terminated for the reason proffered by BHSH, or whether

it was a pretext for retaliation in the wake of her discrimination complaint.

For the following reasons, I find that BHSH’s proffered reason for

Claud’s termination was wholly pretextual. I further find that, due to

BHSH’s violation of her right to contract and the substantial harms caused,

Claud is entitled to an award of both compensatory and punitive damages.

I. FINDINGS OF FACT

Plaintiff Shauncy Claud grew up in the same town where her parents

grew up, where her grandparents live, and where she would eventually

become a real estate agent: Southampton, New York. See Tr. 46:9–11;

Tr. 49:8–10. Claud attended Southampton High School and then worked as a

local tennis pro and summer coach. Tr. 46:10–18. Following that work,

Claud trained at IMG Sports Academy in Florida for “six, seven hours a day

in order to obtain a college scholarship” in basketball. Tr. 46:18–47:4. Claud

then went to Notre Dame Prep School and, in 2010, earned her associate’s

degree at Suffolk County Community College. Tr. 47:6–10.

Claud then began coursework towards sociology and criminology

degrees at Barry University in Miami, Florida, but moved home to

Southampton to be closer to her family after her grandmother became ill.

Tr. 47:16–24. Once home, Claud decided to pursue a career in real estate.

Tr. 47:25. Claud’s choice was based in part on her view of the Hamptons as

one of the most “expensive and exquisite areas in the world,” with a lucrative

market for both home sales and high-dollar rentals. Tr. 48:2–5. She viewed

it as career in which she “could do very, very well” financially while

remaining close to home. See Tr. 47:24; Tr. 48:5.

A. Claud’s employment at BHSH

Following a two-week course and state exam, Claud obtained her

license. Tr. 47:25; 48:13-17. With her new license, Claud became a real

estate salesperson at the firm Town & Country in 2014. Tr. 49:12–13.

Working out of the brokerage’s Southampton office, Claud met with

prospective clients looking to sell their homes or rent homes to summer

vacationers, explained market analyses so that clients could price their

homes, and actively marketed the homes for which she ultimately obtained

listings, including by meeting with potential buyers and renters. Tr. 50:5–19.

Claud worked full-time during the week and often on weekends; she

eventually built a portfolio that included approximately 400 to 500 listings.

Tr. 51:24–25; 54:5–13. But Town & Country’s policies gave agents no

commissions on rentals and only a 10 percent commission on “open” listings,

which allow any agent or brokerage to contact a homeowner directly.

Tr. 52:19–25; Tr. 53:18–24. And Claud had only one “exclusive” listing, in

which a homeowner works exclusively with a specific real estate agent.

Tr. 52:4–6; Tr. 56.4. As a result, Claud netted less than $40,000 over two

years while at Town and Country. Tr. 55:4–11.

One day, Claud showed a young couple a condo listed by a BHSH

agent. Tr. 57:1–11, 14–22. The BHSH agent representing the seller asked

Claud why she was working at Town & Country, told Claud she “would be a

superstar at Brown Harris Stevens,” and predicted that Claud “would do very

well” if she switched firms. Tr. 57:4–7. Claud decided to remain with Town

& Country for the time being. But about a year later, Claud recontacted the

BHSH agent to explore the possibility of making a move to BHSH. Tr. 57:15–

17. Claud had come to believe she could and should be earning

“substantial[ly] more income,” and had lunch with the agent to discuss a

potential role at BHSH. See Tr. 57:16–20. The BHSH agent was

enthusiastic about Claud joining BHSH and connected Claud with BHSH

Senior Executive Director Robert Nelson. Tr. 57:14–22; 58:1.

Nelson had started at BHSH as an agent in approximately 2013. See

Tr. 463:4–5. By 2015, he became Senior Managing Director, a managerial

role in which he supervised the work of agents in BHSH’s Southampton,

Westhampton, and Sag Harbor offices. See Tr. 463:5–13, 21–23. Nelson

obtained his 2015 promotion to Senior Managing Director based on the

recommendation of Aspasia “Cia” Comnas. Tr. 480:19–481:3.

Comnas served as the Executive Managing Director of BHSH from

2010 until 2019. Tr. 234:8–11. In this role, Comnas was responsible for

managing BHSH’s six offices. Tr. 235:3–5, 9–18; see also Tr. 463:22–464:1

(listing offices). She oversaw marketing, assisted agents with listings,

managed budgets, and had ultimate responsibility for hiring and firing

employees and independent agents. See Tr. 235:3–8. Comnas was based in

BHSH’s Bridgehampton office but oversaw the operation of all of BHSH’s

offices. Tr. 235:3–5; Tr. 241:9.

Nelson and Claud met in the fall of 2016.1 See Tr. 57:20–58:1. Nelson

testified at trial that he found Claud to be “smart” and “well presented,” and

thought she would make a “terrific agent.” See Tr. 464:23–24; Tr. 465:9–10.

He offered her the opportunity to join BHSH as a full-time independent real

estate agent, which she accepted. See Tr. 58:15–59:3; Tr. 465:13–15.

1. Claud’s early tenure at BHSH

Claud signed an Independent Agent Agreement (“Agreement”) and

1 Neither Nelson nor Claud gave an approximate date of this meeting,

but Claud recalled meeting with Nelson about a week after her lunch with

Gail, the BHSH agent who recruited her to join the firm, and that her

November 2016 start date was “shortly after” her meeting with Nelson. See

Tr. 57:20–58:1, Tr. 59:2–3; see also Tr. 464:16–17.

began working at BHSH in early November 2016. Tr. 59:1–3; Joint Pre-Trial

Order, ECF No. 58 (Dec. 16, 2022), at 7; Pl’s Ex. 14. She was based in

BHSH’s Southampton office, which Nelson oversaw. Tr. 463:21.

The Agreement stated she would be an independent contractor, not an

employee; earn only commissions as compensation; and receive “professional

assistance” from BHSH in the pursuit of her agent duties. Pl.’s Ex. 14; see

also ECF No. 58, at 7–8 (stating stipulated facts); Tr. 62:6–8 (same); Tr.

206:19–21 (same). Both Town & Country and BHSH had a 50-50 commission

structure—meaning that, on a $100,000 commission, a brokerage would take

$50,000 and an agent would be paid the other $50,000. Tr. 54:23–55:2;

Tr. 62:12. But while Claud earned no commissions from the rentals she

worked on while at Town & Country, BHSH gave her a 10 percent

commission for every rental she closed. Tr. 62:16–24.

From the start, Claud brought “great energy” and a “terrific demeanor”

to her work. Tr. 466:25 (Nelson testimony). She worked hard to “acquire[]

exclusive listings” by “doing paperwork, creating brochures, printing things

out, [and] having different documents signed” and doing likewise for her open

rental listings. Tr. 514:15–25.

Claud “always attended” staff-wide office meetings and sought out

opportunities to talk with her colleagues and supervisors about her listings or

ask questions. See Tr. 11:16–21; Tr. 70:2–3. Claud saw Comnas once or

twice a week, at times emailed Comnas directly with questions, and made a

point of speaking with Nelson and Comnas nearly “any time [she] saw them.”

Tr. 69:14–70:3; Tr. 515:13–14.

BHSH’s social media manager Vanessa Leggard—whose work

managing the firm’s digital communications put her in contact with “all of

the agents”—recalled that Claud was “doing a very good job.” Tr. 6:10-15; Tr.

8:4; Tr. 11:16. Claud was “one of the few agents that always sat down with

[her]” to “create a social media platform” for her listings. Tr. 11:16–21.

Leggard also recalled that Claud was almost always in the Southampton

office when Leggard came in for meetings or consultations. Tr. 11:17–18.

Although Nelson claimed at trial that he was “disappoint[ed]” that Claud was

only in the office for “once a month for an hour or two,” see Tr. 467:2;

Tr. 493:12–13, 16–20, I credit Claud’s testimony that in fact she regularly

came into the office for “[a]t least 40 hours a week” in addition to the time she

spent in the field.2 Tr. 514:13.

Claud hit the ground running at BHSH and netted four exclusive sales

listings. Tr. 72:13–19. These included two land lots in Southampton listed

between $500,000 to $600,000; a home at 117 Pulaski Street listed at $1.65

million; and a home listed at 300 Moses Lane for $799,000. Tr. 72:13–19.

The Pulaski Street house was owned by Reginald Morris, a family

friend who had known Claud since she was a child. Tr. 30:6, 22–23; Tr.

34:11–23. Claud obtained this listing using the process that Nelson himself

advised all new agents to follow: she began her marketing efforts with her

“sphere of influence,” which included friends and family in the area with

whom she had a prior personal connection. See Tr. 502:13–14.

Morris retained Claud not just because of their family ties, but

because—after interviewing her at length and putting her through her

proverbial paces—he believed that she would ably deliver in this important

sale. See Tr. 33:9–12. And Morris was not disappointed: When asked at trial

what she did to market the sale of his home, he responded, “[T]he question

would be what she didn’t do?” Tr. 33:17 (emphasis added). Morris found

Claud to be “very professional” at all times: among other things, she prepared

the listing for his house online and in the local paper, hosted repeated

viewings, and did “everything that a realtor had to do.” Tr. 33:17–24. Morris

never found Claud to be bullying, threatening, or rude—even when Claud

suggested Morris take offers lower than the asking price and, after further

discussions, he declined to follow her advice and continued to hold out for a

buyer at or above asking. Tr. 35:24–36:23.

2 Having viewed their demeanor on the witness stand and having

heard the entirety of each witness’s testimony on a range of issues, I find

Leggard (a disinterested third party) to be more credible than Nelson. In

addition, Nelson’s claim at trial that Claud was infrequently in the office is

devoid of any external support, such as a negative performance review or any

contemporaneous effort by Nelson to note or address this alleged deficiency

as her supervisor.

Claud also secured an exclusive listing for $799,000 at 300 Moses

Lane—a home owned by an elderly woman named Cassandra Brown. ECF

No. 58, at 9. Claud came to know Brown through Brown’s nephew Roland,

who had worked with Claud’s father. Tr. 73:8–9. Brown signed an Exclusive

Right to Sell Agreement with BHSH on April 17, 2017, with Claud as the

agent. Tr. 149:16–18; Pl.’s Ex. 3.

Claud marketed Brown’s house “extensively:” she had photos taken by

a professional photographer, prepared and posted sales listings online and in

the newspaper, and put a “for sale” sign in the yard that yielded “quite a bit

of attention” in that prime location. Tr. 107:12–17. Anticipating that

prospective buyers would likely want to make extensive improvements to and

expansions of the home that Brown had owned for many years, Claud went to

the village zoning department to determine what kind of additions could be

made to the property, so that she would be prepared to answer buyers’

questions in that regard. Tr. 107:18–21. Claud even went beyond her role to

help Brown obtain a Certificate of Occupancy for the property and discuss

senior living facilities and other housing alternatives that might be suitable

for her after her home was sold. Tr. 107:22–108:3; Tr. 111:12–16.

2. Claud experiences repeated negative treatment by

her direct supervisor, Robert Nelson

Out of about 130 to 140 real estate agents and fourteen employees

working at BHSH in 2016–17, Claud was the only Black agent3 and one of

only two Black employees or agents across BHSH’s six offices. Tr. 235:21–

236:8; Tr. 239:5–8. At trial, Claud testified about a series of improper or

otherwise troubling actions, remarks, and other conduct by Nelson that she

experienced over nearly eight months. These included what she perceived to

3 Comnas recalled that at one time BHSH had an affiliation with

another Black agent named Gwen Hankin, but was unsure whether Hankin

was employed while Claud was at BHSH; in any event, Hankin “didn’t really

do much in the way of real estate transactions” and was not an “active” agent.

Tr. 239:5–24. Unlike an active agent, an inactive salesperson or associate

broker licensed by the State of New York could be associated with a firm like

BHSH but could not seek listings or take on clients regularly. Tr. 240:17–23.

be (1) inappropriate comments that directly or indirectly referenced her race,

as well as (2) disparate supervisory treatment as compared to her other

(White) colleagues—dismissive remarks, repeated refusals to mentor Claud,

and reduced opportunities to build her real estate portfolio. Over time, Claud

came to believe that what she perceived as a pattern of lesser treatment by

Nelson was likely because she was the only Black agent under Nelson’s

supervision.

The claims presented by Claud at trial do not include a claim for

discrimination based on race under § 1981, and so my factual findings about

what Claud experienced while Nelson was her supervisor are neither

material nor essential to BHSH’s potential liability for retaliation under

§ 1981. But I note them here because (1) they are relevant to my assessment

of Claud’s overall credibility, which in turn is highly relevant to resolving the

parties’ disputes over the reason why Claud’s contract was terminated (i.e.,

whether that reason was a pretext for retaliation), and (2) they readily

establish that Claud had a good-faith basis to raise her concerns about

Nelson’s treatment of her with Nelson’s supervisor, Cia Comnas, and thus

that Claud engaged in protected activity under Section 1981 when she did so

in June 2017. Specifically, I found highly credible Claud’s testimony as to the

following interactions with Nelson between November 2016 and June 2017.

Nelson made comments throughout Claud’s employment that made

Claud feel “uncomfortable.” Tr. 74:1. As Claud recounted, she once went into

Nelson’s office to ask him a question about her work and he pivoted the

conversation to a statement that she was “the only Black agent in the

Hamptons.” Tr. 74:12–13. Whether or not that accurately reflected the

(under)representation of Black agents in the Hamptons real estate industry

at that time, when Nelson invoked Claud’s race and singularity for no

apparent purpose, it is no surprise that Claud was taken aback by his

remark.4

4 This is not to suggest (and Claud does not argue) that Nelson could

not have invoked an employee’s race and singularity for at least potentially-

appropriate contexts—such as asking her whether she had encountered

On another occasion, Nelson and Claud discussed her recent efforts to

update “open” BHSH rentals that had been inactive for over one year, after

which any agent could attempt to represent a listing’s owner. See Tr. 75:10–

12; see also Tr. 486:2–5 (Nelson describing open rentals policy). Updating

open rentals, which was a standard practice at both BHSH and Claud’s prior

brokerage, would have allowed Claud to earn commissions on those

properties if rented or sold. Tr. 75:6–16; see also Tr. 483:6–10 (Nelson

explaining that new agents like Claud typically sought open rentals). During

that conversation, Nelson stunned Claud by telling her that she was “a pit

bull” who “like[s] to take things from others.” Tr. 74:17–20. For obvious

reasons, Claud found “offensive” that her White supervisor “referred to [her]

as a dog” while discussing her professional conduct and practices in a

supervisory setting. Tr. 74:17–20. Despite Nelson’s remarks, Claud did not

immediately report them to Comnas or anyone else at BHSH. Instead, she

chose to focus on her efforts to build a successful real estate practice at

BHSH.5

But in this area, too, Claud experienced repeated difficulties in her

interactions with Nelson. As a new agent, she actively sought support and

guidance from Nelson in such critical areas as updating listings and

determining how best to price properties and how to market herself to and

secure exclusive contracts with prospective clients. See Tr. 78:3–13; 79:14–

80:14.

According to Nelson, Claud never complained to him that he was not

providing enough support. He maintained that he “love[d] sitting down with

discrimination, needed additional support from management, or had any

suggestions for BHSH as to how to improve racial diversity within the

industry. But the record here reflects none of those.

5 Leggard observed that she found herself around “some agents” who

she “felt were being discriminatory towards all different types of people—

whether it was homosexuals, whether it was Black people, whether it was

Asian people, Latino people.” Tr. 22:8–11. Still, to Leggard, the BHSH office

culture was such that “you didn’t . . . want[] to rock the boat” by raising

complaints. See Tr. 22:13–14.

anyone to go over ideas” to “increase their business,” and the two had “very

engaging conversations” to this effect. Tr. 469:12–18. I do not credit Nelson’s

general or specific denials that he treated Claud as he did all other agents.

Instead, based on my observations of her demeanor, recollections, and the

content of her testimony, I find highly credible Claud’s account of how she

repeatedly tried without success to secure Nelson’s basic guidance and

mentorship in a variety of ways over many months, but was met with largely

dismissive or outright hostile conduct on his part.

For example, Claud recounted one instance in which she had spoken to

a homeowner who gave Claud the pricing of his home—presumably allowing

Claud to update the listing and work on it. Tr. 75:17–21. Claud went into

Nelson’s office to ask a question and then saw that Nelson had emailed

another agent: “Hey, you should look at this.” Tr. 75:21–24. That agent

ultimately got credit “for the work [Claud] had done.” Tr. 75:24–25. In

another instance, Claud called a homeowner who had a listing without an

agent’s name. Tr. 76:2–6. The homeowner told Claud about the listing and

Claud updated the listing. Tr. 76:6-7. Nelson then gave the listing to

another agent. Tr. 76:7-8. These reassignments happened “repetitive[ly].”

Tr. 76:9.

And while it was common at BHSH for a senior manager or broker to

accompany a new agent to meet with homeowners and assist in securing a

sales listing upon request, Nelson “would not make himself available” to meet

with Claud and various homeowners. See Tr. 76:12–14; Tr. 77:8–10, 13–16.

He did finally agree to come to one meeting with Claud and a prospective

client at 40 Broadway in Southampton. See Tr. 77:17–18. But midway

through the meeting, while the homeowner was elsewhere in the home,

Nelson “got up and left” with no explanation; even when Claud implored him

privately to stay, he refused to do so. Tr. 77:18–24. Neither the homeowner

nor Claud knew why Nelson had left.6 Tr. 77:25–78:1. Claud felt

6 Nelson confirmed that he attended the meeting for an hour; claimed

that he answered questions with Claud and stated, at some point, that he

had another appointment; and maintained that Claud never asked him to

stay and left after saying goodbye to the client. Tr. 468:12–24; Tr. 489:20–21;

“humiliat[ed].” Tr. 77:24. She did not get the listing. Tr. 77:24–25.

Later, Peter Turino, the president of BHSH, came with Claud to visit

to the same homeowner. Tr. 78:3–4. As the two walked into the meeting,

Turino said that he thought Nelson was a good manager. Tr. 78:10–12.

Claud decided to let Turino, with whom she thought she had a good

relationship, know that her experience had been otherwise; she told Turino

that Nelson was not “giv[ing] me the support that I ask him for.” Tr. 78:12–

13. Turino initially “laughed it off,” Tr. 78:14, but he stayed with Claud for

the entire meeting with the homeowner and tried to “make up for the damage

Robert [Nelson] had done.” Tr. 78:5–7.

At another point, Claud came to Turino and shared that she “need[ed]

more assistance” as a newer agent but was not getting such assistance from

Nelson. Tr. 78:16–20. Turino then met with Claud at least biweekly to

provide her with some additional support. Tr. 78:22–24. Claud asked Turino

not to repeat to Nelson what she had said about Nelson’s lack of support “for

fear of what Robert [Nelson] might do if he knew that I had said that.”

Tr. 78:25–79:2.

In one meeting, Claud and Turino talked about how to generate leads.

Tr. 79:3–5. A “huge lead generator” for agents was the “Up Board,” a

“revolving” schedule of which agents would get extremely valuable walk-in or

telephone leads from prospective buyers or sellers. See Tr. 85:23–86:14

(defining “Up Board”); Pl.’s Ex. 9, at 21 (BHSH policy manual describing “Up

Board Policy”). Agents would be included on the board at the direction of

management if they were knowledgeable about inventory and “physically in

the office.” Tr. 86:23–87:1; Pl.’s Ex. 9, at 21. At the meeting, Turino realized

Claud’s name was not on the Up Board. Tr. 79:6–8. In fact, Claud’s name

was absent “several times:” on “at least four or five” occasions,” Turino saw

that Claud’s name was not on the Up Board (which was kept out of view of

the agents themselves) and he promised to talk to Nelson. See Tr. 79:11–13;

Tr. 87:2–9. Because Claud could not see the Up Board, Claud did not know

Tr. 490:3–5. Based on my observations of Nelson’s demeanor and overall

credibility, I do not credit his conflicting account of what transpired at this

meeting.

whether Turino ever followed through with this promise or whether Nelson

listed her on the Up Board thereafter; but to the best of her knowledge, she

never got a single lead through the Up Board. Tr. 87:1–2, 15–17.

Another area where Nelson did not support Claud concerned “comps,”

or help with pricing a client’s home correctly. Tr. 80:7–8, 11. At one point,

Claud emailed Nelson to run her proposed pricing by him and get his

feedback as to whether she had correctly researched and priced the listing.

Tr. 84:24–85:3. Nelson called Claud and said, “[Y]our email was as lengthy

as a book,” and told her to simply “figure it out.” Tr. 85:4–5.7 At a different

point, Claud asked Mark Baron, a senior BHSH agent, for assistance with

comps after she had spoken with an owner. Tr. 79:23–25. “[I]sn’t Robert

[Nelson] helping you?” asked Baron. Tr. 80:11. Claud said no. Tr. 80:11.

“[T]hat’s outrageous,” said Baron. Tr. 80:12. “[H]e should be offering you

way more assistance. He does to other agents.” Tr. 80:13–14. Baron offered

to “escalate[]” Nelson’s lack of support, but Claud didn’t want him to, as she

was “afraid of retaliation.” Tr. 80:12–17. Her wariness of such retaliation

also led Claud to refrain from updating open listings, even though, as noted

above, doing so was a standard route through which agents earned additional

commissions: Claud felt “scared to update listings because [she] would get a

lot of pushback and a problem from Robert [Nelson].” Tr. 79:16–18.

Claud’s experiences with Nelson led her to seek help from other

agents. One homeowner reached out directly to Claud to ask her to manage

his “six-figure rental property.” Tr. 81:13–15. Claud was “too afraid to

update it because [she] knew that Robert [Nelson] would give [her] a big

problem about it.” Tr. 81:15–17. So she spoke to Ellen Kronemeyer, a

colleague at BHSH whose daughters had gone to high school with Claud and

who worked with Nelson, about that property and the experience with Nelson

at 40 Broadway. Tr. 58:9–16; 81:19–21. Kronemeyer appeared “surprised,”

7 The transcript of the trial quotes Claud as saying that Nelson told

her to “go on and figure it out,” but the Plaintiff’s proposed findings of fact

described this portion of the quotation as “[G]oogle it and figure it out,” ECF

No. 64, at 11, which is consistent with the Court’s recollection of the

testimony. Either way, the message conveyed to Claud by Nelson’s response

is the same.

and then came with Claud to pitch meetings with potential clients.

Tr. 81:22–25.

Similarly, after 117 Pulaski Street became Claud’s first exclusive

listing, Claud reached out to Nelson for help. He “brushed [her] off.” Tr.

82:14. Claud learned from Baron—not her manager, Nelson—that the

property might be priced too high at $1.65 million, and again asked Nelson to

help her approach Morris to encourage him to lower the price by $200,000.

Tr. 82:14–83:1. Nelson refused. Tr. 83:1. Claud then asked John Vitula, a

“top agent in Southampton,” for help. Tr. 83:4–6. Vitula would “make the

time” to meet with Claud and different homeowners. Tr. 83:7–9. He

accompanied Claud on subsequent visits—including at least one property at a

price point over $1 million. Tr. 83:17–84:3. Meanwhile, Nelson kept meeting

with other agents. See Tr. 85:10–18.

Nelson also failed to take action to protect the exclusive listings that

Claud did manage to obtain on her own. One of those was the property at

117 Pulaski Street: the homeowner, Reginald Morris, had engaged Claud as

his exclusive agent, but another agent, Christopher Burnside, listed Morris’s

house in the system as an open listing. Tr. 87:18–88:3. In so doing, Burnside

acted without Morris’s permission and violated BHSH policy—and stood to

earn 10 percent of any commission Claud would have received. See Tr. 88:4–

10; Pl.’s Ex. 9, at 5. Claud explained the situation to Nelson, who did

nothing. Tr. 88:11-13. Finally, Morris himself informed BHSH, “I did not

authorize Christopher Burnside to list this property for an open listing and I

want it removed from the system.” Tr. 88:14–18. Nelson removed the listing

only after Morris complained. Tr. 88:19–21.

3. Claud raises her concerns about Nelson’s

discriminatory treatment directly with his

supervisor, Comnas

Claud’s informal reports about Nelson’s conduct to her colleagues and

her efforts to obtain alternative, ad hoc supervision and mentorship were

ultimately unsatisfactory. Thus, in June 2017, Claud decided that it was

time to raise her concerns directly with Nelson’s own supervisor, Cia Comnas.

At the time, BHSH had no written policies that advised sales agents or

employees of their rights to be free from discriminatory treatment. The 2017

BHSH Policy Manual, which gave agents detailed guidance on topics such as

listings and licensing, contained no provisions whatsoever regarding the

company’s anti-discrimination policies, let alone where, how, or when to

report complaints of discrimination or retaliation. See Pl.’s Ex. 9. Nor did

Comnas recall BHSH ever providing its agents or employees with any

guidance as to how they should or could report discriminatory treatment they

personally observed, experienced, or learned about.8 See Tr. 311:17–312:20.

Claud testified that she finally raised her concerns about Nelson to

Comnas in a private, in-person meeting on June 14, 2017. See Tr. 91:12; Tr.

92:1–93:5. Believing that she could “trust” Comnas to “handle it with

integrity,” Claud called Comnas that morning and asked if she might be able

to speak with her about a “private matter.” Tr. 90:25–91:3; Tr. 91:13–15.

Comnas said yes and suggested that they meet at the Southampton office

approximately fifteen minutes before that day’s staff meeting was scheduled

to begin. Tr. 91:16–18. When they arrived at the office, Comnas and Claud

went outside to meet privately on a back patio. Tr. 92:10–13. In the meeting,

Claud told Comnas: “I will be honest with you, [Nelson is] making me—I feel

uncomfortable with my race[.]” Tr. 92:13–15. Claud told Comnas that

Nelson was “not providing me the support that I see him provide to my White

colleagues.” Tr. 92:15–16.

She recalled that Comnas “looked extremely surprised.” Tr. 92:17.

Claud then provided Comnas with additional details—for example, she

recounted the time that Nelson had “embarrassed” her in front of a

prospective client when he “got up and left in the middle of the meeting” at

the client’s home. Tr. 92:17–19. By the end of the meeting, however, Comnas

“had offered a solution”: she would personally give Claud the “help and

support” that Nelson had failed to provide. Tr. 93:4–5; Tr. 92:20. Comnas

8 Neither Nelson nor Comnas testified to any such policies, trainings,

or guidance given to employees, and BHSH presented no other evidence that

they existed. Nelson testified that, if a concern about race discrimination had

been raised, either he or Comnas would have called Judy Kaplan, the head of

human resources at the company’s corporate office. Tr. 472:10–473:1. But

they provided no such guidance to agents or employees like Claud.

proposed to Claud that they find a time to meet again, at which point they

would “come up with a game plan” for Claud’s business development and

supervision. Tr. 92: 19 24. Claud remembered the takeaway message from

Comnas’ proposal as: “[I]f he’s not helping you, I will.” Tr. 93:4–5. She

–

agreed to Comnas’s proposal, and the meeting ended. Tr. 92:20–21;

Tr. 93:2–5.

For her part, Comnas denied that Claud ever approached her directly

with any such concerns about Nelson, on that date or any other. Tr. 242:5–

10. When shown phone records that appeared to confirm that she and Claud

had spoken briefly by telephone on the morning of June 14, 2017—consistent

with Claud’s testimony that she called that day to request such a meeting—

Comnas claimed not to recall whether she met with Claud that day. Tr. 246:

8-9. She did recall another occasion in which Claud “came by to see me” at

Comnas’s primary office in Bridgehampton, for a general “chat” about “how to

improve her business.” Tr. 246:5–14. But Comnas maintained that at no

time did Claud ever speak with her about potentially discriminatory

treatment by Nelson. See Tr. 242:8–10; 246:8–9.

Having observed the demeanor and heard the live testimony of both

Comnas and Claud, I do not credit Comnas’s account. Instead, I found highly

credible Claud’s detailed, measured testimony that she reluctantly but

forthrightly raised these concerns with Comnas in a one-on-one conversation

shortly before a staff-wide meeting at BHSH’s Southampton office, on or

about June 14, 2017. And I find it incredible that Comnas would not

remember that exchange. Among other reasons Comnas was unlikely to

forget such a meeting: Claud was the only Black real estate agent at any of

BHSH’s offices, and a new one at that; Nelson was the senior manager in the

office where Claud worked; Nelson was a longtime colleague of Comnas’s and

reported directly to her; and Comnas had recommended him for his

promotion to Senior Managing Director just two years earlier. Further, as

both the senior hands-on executive at BHSH and a lawyer herself, see Tr.

237:4–5, 8–10, Comnas would have been well aware of the potential legal

liability BHSH faced if Claud’s allegations were true but the company failed

to take prompt, meaningful action to remedy them. I thus do not credit

Comnas’s testimony that she had no recollection of any such meeting with

Claud.

Further, there is no evidence that Comnas subsequently did anything

to investigate, remedy, or otherwise respond to these serious concerns about

possible race discrimination against a senior executive at BHSH—other than

to swiftly try and “fix” the problem by summarily terminating Claud’s

contract with BHSH just two weeks later.

B. Claud’s termination from BHSH

Shortly after her June 14 meeting with Comnas, Claud went away for

approximately one week on a pre-planned vacation to Montreal. She

returned around June 26 or 27 and resumed work on her listings at BHSH.

Tr. 93:20–95:3.

After Claud returned, she grew concerned that she had not heard

recently from Cassandra Brown, the owner of 300 Moses Lane. Tr. 115:18–

21. Claud’s efforts to reach Brown ultimately led to a series of phone calls

and emails culminating in Claud’s termination.

1. Claud’s call with Brown’s daughter, Karen Ham

On June 29, 2017, having been unable to reach Brown for a few days,

Claud reached out to Brown’s nephew Roland. Roland gave Claud the phone

number for Karen Ham, Brown’s daughter. Tr. 115:21–24. Claud had never

spoken to Ham before, and Ham’s phone number was not on the listing for

300 Moses Lane. Tr. 112:5–7; Tr. 516:7–9, 17–19.

On June 29, Claud called Ham looking for Brown. ECF No. 58, at 9.

Ham told Claud that she knew where Brown was and who Claud was, and

that she would call Claud back with Brown on the line. Id. A few minutes

later, Ham did so. Id. Claud then said she was calling to “check in” on

Brown. Tr. 120:16–17. Rather than let her mother (the property owner)

speak, Ham asked Claud about offers and expressed frustration over a

reduction in the price of the listing. Tr. 120:20–121:6; Tr. 124:7–11.

This put Claud in a difficult position, since Brown, her client, had

earlier given Claud “numerous instructions” not to speak to “anyone else

except for her about the sale of the property”—including her own family.

Tr. 121:1–3; Tr. 124:18–21; see also Tr. 124:21–23 (describing how Brown

“was very adamant” that “[s]he didn’t want me talking to anyone else.”).

When Claud declined to answer her questions directly, Ham became “upset,”

screaming phrases like “this is F-ing ridiculous” (but using the full expletive

for that term) and telling Claud to take the listing off the market. Tr. 121:4–

6; Tr. 121:16–19; Tr. 125:4–7. When Claud told Ham that Claud could only

take the listing off the market with the owner’s authorization, Ham again

yelled and cursed at Claud. Tr. 121:7–10.

Claud concluded that the conversation was becoming increasingly

difficult and that the best course would be to hang up the phone. She did so.

See Tr. 125:9–12. While Claud had never had a conversation like that before

with a client or client’s family member, Claud concluded that nothing

inappropriate had happened with respect to her actual client, Cassandra

Brown; in fact, she had followed the client’s instructions in declining to

engage with Ham over the details of the listing. Accordingly, Claud saw no

need to immediately report the conversation to Nelson or anyone else at

BHSH. Tr. 126:15–20.

2. Comnas speaks with Ham

At or about 7:00 p.m. that same evening, Karen Ham called Comnas.

See Tr. 248:7–9; Tr. 249:20–25; Tr. 256:2–5. Comnas testified at trial that

both Ham and Brown called her to voice complaints about Claud—which, if

true, might have undercut Claud’s testimony about her client’s wishes, and

given Comnas’s purported concerns about Claud’s conduct greater credibility.

See Tr. 247:15–248:11. But numerous aspects of the record contradict

Comnas’s claim in this regard. First, and most importantly, Comnas’s

contemporaneous notes from the call clearly say only that “Karen Ham” made

the phone call in question about “Shauncy Claud” that evening, and say

nothing about Brown being on the line. See Pl’s Ex. 8 (reflecting “call from

Karen Ham re: 300 Moses Lane (mother’s home)”); Tr. 252:5–6, 15; see also

Tr. 253:10–12. The fact that these notes refer to “mother’s home” also

indicates that Brown herself was not on the line. Similarly, Comnas emailed

Nelson about ten minutes after the call and described a call coming from “[a]

client” complaining about Claud’s behavior to her and “her mother.” Pl.’s Ex.

2, at 2.

It is unclear whether Comnas—who acknowledged that she did

nothing to verify Ham’s identity or relationship to the property before

terminating Claud’s affiliation with BHSH—was at that time under the

mistaken belief that Ham was the co-owner of the property or otherwise a

“client” of BHSH. But even if she were, it does not change the facts that (1)

Comnas’s contemporaneous notes and emails provide clear evidence that the

only person she spoke with that evening was Karen Ham, who was not the

firm’s client and had no ownership interest in the property; and (2) Comnas

later gave what I conclude was knowingly false testimony that Brown herself

was on the line and shared in Ham’s complaints. It is my conclusion that

Comnas belatedly claimed that Brown herself was on the call for the purpose

of providing an added veneer of legitimacy to the adverse employment action

she took against Claud on June 29–30.9

3. Comnas decides to “fire Shauncy [Claud] ASAP”

In her email to Nelson, which appears to be the only written

correspondence Comnas and Nelson had about firing Claud, Comnas wrote:

Sorry to disturb you on reunion but wanted you to know that we

must fire Shauncy ASAP.

A client whose small exclusive she has on Moses Lane just called

9 To be clear: BHSH would have been entitled to terminate Claud’s

contract in response to a single complaint about “rudeness” by a non-client,

whether the complainant was a client’s family member or any other person,

including Ham. But it may only to do so if the complaint was the actual

reason for the termination. As discussed herein, there is overwhelming

evidence on this record that it was not—and that the June 29 phone call was

instead a pretext for unlawful retaliation against Claud. My discussion of

Comnas’s claim that it was Brown and Ham together, not just Ham, who

voiced these alleged complaints on the June 29 phone call is relevant only

insofar as it relates to Comnas’s credibility. But Comnas’s credibility is

obviously critical to BHSH’s defense and the key disputed issues at trial,

since Comnas is the senior executive (1) to whom Claud alleges she voiced her

concerns about race discrimination two weeks before her termination (but

who denies that this occurred), and (2) who made the ultimate decision to

terminate Claud, after briefly consulting with Nelson.

to tell me how outrageously rude Shauncy was to her and her

mother.

It’s time for her to go before she can do any more damage.

The client did not want Shauncy to know she had complained as

they were a bit afraid of her – so we will have to wait a day or two

and then fire her after we have changed the Southampton office

lock. Shauncy is someone who could easily try to break in and do

damage after being fired. SH agents will all get new keys.

Do you want me to wait till you get back? I can do so or I can just

get it over with.

Pl.’s Ex. 2, at 1–2; see also Tr. 268:6–8. Nelson replied about four hours

later10: “Oh no. Please do it. Sorry you have to deal with this.” Pl.’s Ex. 2, at

1. Comnas then replied, “No worries–I have done it many times and this is

really an instance where she deserves to go.” Id.; see also Tr. 269:6–12.

Nelson asked no additional questions about the alleged phone call from

the unnamed “client,” did not encourage Comnas to speak to Claud and get

her side of the story, and did not in any way discourage Comnas from

immediately terminating Claud. To Nelson, hearing a third-hand report that

Claud was “outrageously rude” to a client was enough for him to reply to

Comnas: “Please, Cia, you deal with it.”11 Tr. 500:7.

10 Plaintiff’s Exhibit 2 shows a 4:10 p.m. email from Comnas to Nelson,

followed by a 7:51 p.m. reply from Nelson and an 8:23 p.m. reply to that email

from Comnas. These times translate to 7:10 p.m., 10:51 p.m., and 11:23 p.m.,

respectively, given Comnas’s notes about a call at 7 p.m. and Nelson’s

testimony about being on vacation in Vancouver, British Columbia, which

has a three-hour time difference with Southampton. See Tr. 496:22–497:3.

11 Comnas said that, before firing an agent, Comnas would have

typically notified staff at the New York City corporate offices of Brown Harris

Stevens. Tr. 272:19–273:14; Tr. 313:11–19. Comnas did not specifically

4. Claud is formally terminated, and notified of her

termination after the fact

The next day, at some time after 1:57 p.m., Claud opened her email.

There, for the first time, Claud was shocked to see an email Comnas had sent

to BHSH staff—approximately 140 to 150 people—stating that Claud was “no

longer associated with our company.” Tr. 127:18–21; see also Tr. 276:23–25;

Pl.’s Ex. 21. At 3:05 p.m., Comnas texted Claud to tell her she had sent the

above termination notice to Claud’s Gmail address. Tr. 131:18–22. Claud

then checked her personal email and saw that Comnas had emailed Claud at

1:53 p.m., just four minutes before the staff-wide announcement about her

termination was transmitted:

Dear Shauncy,

This email is notice that we have terminated your association

with Brown Harris Stevens of the Hamptons, effective

immediately.

Items from your desk that looked to be your personal belongings

have been placed in a box by our staff and you may pick them up

during regular business hours at the Southampton office.

While BHS was not the right fit, we nonetheless wish you well

in your future endeavors.

Cia

Pl.’s Ex. 7, at 1.

All of this occurred without warning: Claud testified that no one had

discussed her termination with her prior to these emails, and that she had no

way of reaching her buyers or accessing her accounts at BHSH. Tr. 129:22–

130:3. The sudden termination made her “upset” and “emotional.”

Tr. 129:22–23. Neither Comnas nor Nelson told her why BHSH had not been

recall calling the corporate office here, Tr. 273:12–14, and BHSH offered no

evidence that she did so.

the so-called “right fit.” See Tr. 163:5–11.

Comnas had no contact with Claud between the time of her call with

Ham and the notice-of-termination emails she sent Claud the following day.

Comnas claimed that she attempted to reach Claud but was “not able to

establish contact” with her on the evening of June 29 or the morning of June

30, 2017, before she emailed the termination announcement to Claud and all

other BHSH staff. Tr. 272:6–9; Tr. 278:25–279:9.

I do not credit Comnas’s claim that she tried to speak with Claud but

was unable to reach her, for several reasons. First, Comnas testified that, on

the morning of June 30, she asked the two Southampton office administrators

to find Claud for her. See Tr. 256:9–258:3. Yet neither Comnas nor anyone

else at BHSH explained why none of the employees or agents at this

prominent and busy real estate firm could not connect the senior manager of

the region with one of her subordinate agents about a time-sensitive matter,

had she in fact requested they do so.

Second, Comnas could not remember whether she tried to call Claud

on the evening of June 29 after she made her decision and claimed not to

recall whether she even had Claud’s cell phone number. Tr. 258:5–7, 9–10;

Tr. 269:24–25. She later said that she “may have tried to reach out” to Claud

between her 7:10 p.m. and 11:51 p.m. emails. Tr. 269:24–25. But, when

shown Claud’s cell phone records, Comnas could not say that any of the

missed or completed calls to Claud’s cell phone from June 29, 2017, 6:26 p.m.,

to June 30, 2017, 1:21 p.m. came from BHSH phone numbers, including hers.

See Tr. 322:20–323:3; Tr. 324:1–4; Tr. 325:10–326:22.

It strains belief that Comnas could not have reached Claud that

evening or early the next morning had she in fact attempted to do so as she

claims. Even if the phone records do not reflect any missed calls to Claud’s

cell phone, Comnas could have surely followed up with a brief text or email

asking Claud to call her immediately. It strains credulity that in June 2017,

the senior manager of a prominent real estate firm would not have expected

her agents to be checking email, texts, or both with great frequency—

especially in the Hamptons, in the height of the summer season. Indeed, as

the trial exhibits demonstrated, Comnas and Claud had texted directly about

another property that same year, with at least one text sent by Comnas just

nine days before she terminated Claud. See Pl.’s Ex. 20 (showing text

exchanges from January 21, 2017, and June 21, 2017). And Comnas did text

Claud to confirm receipt of the termination notice after it was sent out on

June 30. Id.; Tr. 277:13–278:21.

At 3:39 p.m., less than an hour after texting Claud to advise her of her

termination, Comnas emailed BHSH agent Jennifer Wisner about taking

over the Cassandra Brown listing at 300 Moses Lane. See Tr. 302:19–303:4;

Pl.’s Ex. 6. Comnas started the email: “The daughter’s name is Karen Ham”

and gave Ham’s phone number. Tr. 303:13–16. Comnas said she gave Ham’s

phone number because it was “the primary contact number that I had on

hand myself.” Tr. 303:17–19. But Claud testified—without contradiction—

that Ham’s number was not the number on the listing, which she explained

only listed the owner’s—Brown’s—number. See Tr. 515:17–516:21.

Comnas continued the email: “As I mentioned, [Ham] is getting a

Power of Attorney for her elderly mother (Cassandra Brown—the owner) and

in the meantime, you can probably speak with both her mother and her

together.” See Pl.’s Ex. 6. Comnas had no basis to question Brown’s

competency to manage her own personal or financial affairs, nor Brown’s

ability to continue to serve as the firm’s sole contact for the sale of 300 Moses

Lane. Tr. 305:8–16. But, as Comnas was aware, Ham having power of

attorney would have empowered her to sell the property without Brown’s

consent or involvement. See Tr. 305:23–306:4. This power would also make

Ham, not Brown, the “client” of BHSH—i.e., the position that Comnas had

(incorrectly) represented Ham that already held when she emailed Nelson on

June 29. See Tr. 305:23–306:4; Pl.’s Ex. 6.

On or about July 3 or 4, Claud went to pick up her belongings from the

BHSH Southampton office. Tr. 164:12. She entered the office, collected a box

of her belongings, and did not speak about her termination with Comnas,

Nelson, or any other BHSH staff. Tr. 163:19–164:6.

At trial, BHSH argued that Claud’s credibility was questionable

because she did not recontact BHSH in the days or weeks after she was fired

to seek further explanation as to the reason(s) for her termination. Defense

counsel characterized Claud as someone who is “very sensitive to race” and

“look[s] at the world through race-colored glasses[.]” Tr. 551:19–24. Counsel

argued that if someone with this purported worldview who, like Claud, had in

fact made a claim of race discrimination to her employer two weeks earlier,

the logical next step would have been to ask the employer whether her

termination was because of this recent complaint. See Tr. 552:1–553:10.

I find no merit to BHSH’s claim. First, there is no evidence to support

counsel’s characterization of Claud as “very sensitive to race” or as someone

who “looks at the world with race-colored glasses.” The only conceivable

evidence from Claud’s entire life history or tenure with BHSH upon which

counsel could conceivably rely to support this assertion is her June 2017

report to Comnas about Nelson’s treatment of her—which, if it occurred as

Claud claimed, is hardly the product of a “sensitive” or “distorted” perception,

Tr. 551:20, 24, but was instead a measured, highly detailed account that any

objective observer would find troubling, and which Claud quite reasonably

concluded may have been due to her race. Second, it is hardly unreasonable

to conclude that a person in Claud’s position—i.e., who was publicly fired

without explanation, shortly after making a complaint about race

discrimination to the same executive who terminated her—would have done

exactly what Claud did here: retain counsel to investigate and litigate the

matter on her behalf.

5. Additional evidence undermining Comnas’s

credibility

In addition to the foregoing, there were several other aspects of

Comnas’s testimony that seriously undermined her credibility. Comnas

briefly solicited Nelson’s input by email when she first decided to fire Claud,

but was, by all accounts, the sole and final decisionmaker behind Claud’s

termination. And since Comnas’s email correspondence, notes, and trial

testimony were the key evidence (and in many respects, the sole evidence)

offered by BHSH at trial as to how, when, and why that decision was made,

her credibility is essential to resolving the question of whether the reason

BHSH cites for firing Claud was pretextual.

First, Comnas gave what I find to be flatly incredible testimony in

which she claimed a total lack of recollection regarding another high-profile

incident involving a different BHSH real estate agent: a White agent named

Roxanne Briggs, who remains affiliated with the firm to this day. Tr. 329:19–

330:6. At trial, Plaintiff’s counsel sought to contrast Comnas’s immediate

decision to terminate Claud’s contract based on a single phone call from a

previously unknown source with the very different way Comnas and the firm

treated Briggs, after Briggs was arrested on assault charges following a

public altercation in a Hamptons restaurant in which Briggs was alleged to

have thrown a wine glass at another customer—allegedly missing her

intended target but shattering the glass against the wall. Tr. 330:9–11;

Tr. 331:4–332:18; Tr. 333:17–19. After Comnas claimed to have no

recollection whatsoever of Briggs’s arrest or the facts surrounding it, Tr.

330:9–11, she was shown a copy of an article from the widely read “Page Six”

gossip column of the New York Post dated November 4, 2013, describing

Briggs’s alleged actions and her arrest in detail. See Tr. 333:17–334:8; Pl.’s

Ex. 31. Yet Comnas still offered no explanation or recollection as to why

Briggs remained at the firm after this high-profile and allegedly physically

violent incident, while Claud was summarily fired in the wake of a single

phone complaint Comnas received from a previously-unknown caller. She

testified only that “[t]hat’s what [the article] says” (about Briggs’s alleged

conduct), that if true, these actions “would not reflect well on” Briggs, and

that Briggs would “not necessarily” have been fired as a result of her actions.

Tr. 333:19–334:8.

Whether or not Comnas and BHSH had good reason to continue their

affiliation with Briggs after this alleged assault is not the point. They might

well have concluded that Briggs was entitled to remain with the firm while

charges were pending but before she was convicted of any crime. The

significance of this testimony is that Comnas’s claimed lack of recollection

about this high-profile incident was not credible. It prevented Plaintiff from

cross-examining her about the firm’s treatment of Briggs, so that Plaintiff

might contrast it with the actions Comnas so swiftly took against Claud

because, she claimed, Claud’s alleged conduct was so “shocking.” Tr. 280:3–

11. I find it incredible that Comnas, the senior executive in charge of BHSH’s

six offices, would not have been well aware of the Briggs incident at the time

it was reported. As the highest-ranking manager of BHSH’s Hamptons

offices, Comnas would have all but certainly been deeply involved in the

firm’s discussions of the fallout from the Post article: for example, whether

Briggs’s association with the firm should be suspended or terminated while

her criminal charges were pending, and how to mitigate any potential public-

relations damage to the firm from her highly publicized arrest.12 That is

particularly so in light of what I found to be credible testimony from BHSH’s

former social media director Vanessa Leggard. Even though she was not

working for BHSH in 2013, Leggard clearly recalled that the Briggs incident

was the “talk all around the town” at the time it occurred, and that when

such an event is reported in a Hamptons newspaper, “everyone knows

everything.” Tr. 14:6–9; Tr. 23:12–13. In sum, I find it incredible that

Comnas did not know about Briggs’s arrest at the time it occurred, and that

she did not still recall that incident at the time she testified at Claud’s trial,

even after reviewing a copy of the Post article; and that she gave false

testimony when she disclaimed any such recollection of the details of this

high-profile incident.

Second, I did not find credible Comnas’s testimony that it was

standard “office policy” to change the locks to BHSH’s office(s) every time the

firm terminated one of its agents—an explanation Comnas offered to explain

her emailed June 29 instructions to Nelson to “wait a day or two” to notify

Claud of her firing, in order to give them time to “change[] the Southampton

lock”. See Pl.’s Ex. 2, at 2; Tr. 264:10–12. This claim was unsupported by

any other evidence (such as BHSH manuals) and is difficult to square with

Comnas’s own email that discusses her views of Claud specifically. In the

email, Comnas did not say anything about changing the locks pursuant to

any sort of standard protocol or routine policy; instead, she instructed that

this be done in Claud’s case based on her own concerns about what Claud

might “do” after learning of her firing. See Pl.’s Ex. 2, at 2. To Comnas,

Claud was “someone who could easily try to break in and do damage after

being fired.” See id. Yet other than a single phone call from Ham

complaining of Claud’s “rudeness,” Comnas was aware of no other negative

reports about any aspect of Claud’s workplace conduct or professionalism,

and certainly not that Claud had ever been violent. See Tr. 263:11–15;

12 The article did not mention Briggs’s affiliation with BHSH. See Tr.

333:24–25. But Comnas conceded that a quick Google search of Briggs’s

name by anyone who read the article or otherwise heard about the incident

would have revealed Briggs’ affiliation with BHSH, and would not have

reflected well on the firm. Tr. 334:2–5.

Tr. 264:19–20; Tr. 265:1–6. And BHSH offered no evidence from Comnas or

any other source to justify the claim in her email to Nelson that Claud was

the “sort of person” likely to commit an illegal “break in” or intentionally

damage the property of a former employer.

I conclude, instead, that Comnas falsely claimed that this procedure

was simply “office policy” to mitigate, post hoc, the derogatory and

unsupported statements she had earlier made about Claud in her change-the-

locks email to Nelson on June 29. It is not for this Court to say whether

Comnas’s views on Claud’s alleged temperament and propensities were

rooted in false stereotypes or biases about Black women that she may have

harbored, even unconsciously; Claud is not claiming that such bias is the

reason why she was fired. But there is ample evidence supporting the

conclusion that any “damage” Comnas may have actually feared Claud might

cause to BHSH was not based on what she was told in her brief call with

Ham—but was, instead, based on what Comnas had reason to fear might be

the fallout from Claud’s earlier complaints about apparent race

discrimination by a senior manager at BHSH.13

Third, Comnas’s credibility is undermined by how quickly she acted to

fire Claud under these circumstances. Comnas testified that she did not even

consider any other form of discipline or lesser sanction than firing because

the behavior Ham described was so “shocking.” See Tr. 280:3–11. While

Comnas was not legally required to consider lesser sanctions, Comnas

confirmed that she had heard no complaints whatsoever about Claud’s

13 As an attorney and the Executive Managing Director, Comnas was

no doubt aware that the Claud’s complaints about Nelson could have broad

implications for the firm, even beyond any individual claims that might have

been brought by Claud. Nelson was not just Claud’s supervisor but the

senior BHSH official in its Southampton office, and he played a key role in

hiring other agents (as he did with Claud). Tr. 465:13–19. Given that the

firm had only one Black agent in all of its offices, evidence that Nelson

treated his supervisees differently based on race could well have opened up a

broader inquiry into his hiring practices. And Comnas was not only Nelson’s

direct supervisor at the time, but was the person who recommended he be

promoted to Senior Managing Director in 2015. Tr. 479:16–481:20.

performance, interpersonal dynamics, or anything else that would give rise to

concerns about her role as an agent with BHSH prior to June 29. In my view,

this unblemished history makes it all the more unlikely that Comnas would

immediately take the most draconian step available to her—sending an email

within minutes announcing that “we must fire [Claud] ASAP”—and that she

would do so (1) based on a single, uncorroborated conversation with a person

with whom she had never spoken (and who was not even a client of the firm),

and (2) without at least speaking with Claud and/or the firm’s actual client to

get more information and hear Claud’s version of events. See Tr. 281:2–7.

Instead, her actions are far more consistent with those of a manager who

seized on a single negative phone call as an opportunity to terminate the

firm’s association with its only Black agent, just weeks after that agent had

lodged a serious, detailed complaint about discrimination based on race by

her direct supervisor.

C. Aftermath

After being terminated by BHSH, Claud tried her best to stay in the

real estate profession. But, with her reputation “tarnished,” Claud’s

trajectory changed. See Tr. 165:10.

1. Claud accepts a new position with Nest Seekers

International

Less than a year after BHSH had recruited her as an agent with

significant potential and longstanding ties to the community, Claud tried but

failed to secure a position as a real estate agent with similarly prominent

firms in the region like Compass, Douglas Elliman, and Corcoran. Tr.

138:20–21. She eventually accepted a contract as an independent agent with

Nest Seekers International, which Claud described as a “lower-level

company” with a less lucrative portfolio and significantly lower profile in the

real estate market than BHSH. See Pl.’s Ex. 4; Tr. 139:21. Claud was

associated with Nest Seekers for two years, Tr. 164:19–20, but only worked

there full-time for four to five weeks. Tr. 164:23–165:1.

Claud stopped her full-time work there after struggling to secure the

kinds of listings she would need to make a living as a full-time agent. For

instance, Claud recalled her former client Reginald Morris, the owner of 117

Pulaski Street, telling her, “I don’t see Nest Seekers signs as frequently as I

saw [sic] Brown Harris Stevens signs.” Tr. 167:4–6. To Morris, this made

BHSH the “better company”—and it was Claud’s impression that he and

other homeowners “wanted one of the best companies to represent them.”

Tr. 167:8–10. Morris ultimately stayed with the more prominent firm,

BHSH, and sold his house for $1.525 million. Tr. 35:5–7. But Morris himself

recalled how he was disappointed that the sale went to another agent after

Claud had done “so much work to sell [his] house.” Tr. 40:21–41:8.

When they learned she was no longer affiliated with BHSH,

prospective clients asked Claud why that was the case. Tr. 168:13–14.

Having received no explanation from BHSH as to why she was terminated

(having been told only by Comnas that BHSH was not “the right fit,” see Pl.’s

Ex. 7, at 1), Claud could not give a reasonable, reputation-saving answer to

prospective clients. Nor could she explain to them that she had left Town &

Country for a more lucrative opportunity at BHSH without having an

explanation as to why she had so quickly left BHSH in turn. Tr. 168:11–14;

Tr. 168:20–169:3.14 One East Hampton homeowner with whom Claud had

developed “a good, professional relationship” ultimately declined to retain

Claud to sell her home and explained to Claud: “[Y]ou were just at Brown

Harris Stevens, now you’re at Nest Seekers, and formerly you were at Town

& Country. That is not consistent. I need an agent who is consistently at the

same place.” Tr. 166:19–167:1.

Based on comments like these and her own understanding of the real

estate market, Claud concluded that no matter how hard she worked or how

talented she might be, she would have great difficulty overcoming prospective

14 Defense counsel objected on hearsay grounds to portions of Claud’s

testimony that concerned conversations she had with third parties, including

prospective clients, after her termination. Tr. 169:6–7. To the extent such

statements are relied upon by me, they are received in evidence not for their

truth, but for their effect on the listener, i.e., the basis for Claud’s belief that

she had no viable prospects for a viable real estate career after her

termination from BHSH and her subsequent decision to return to school, and

as evidence in support of her claims of emotional distress (such humiliation

and anxiety), as relevant to damages.

clients’ negative perceptions of her short tenure at BHSH. See Tr. 166:4–9

(“[A]fter [BHSH] wrongfully terminated me, people saw that I was in three

companies in two years. That’s a lot . . . [I]t looks like I hop from company to

company. That looks like they’re going to sign a listing with me and in four

months I might be out of there. It doesn’t look like I am consistent.”).15

15 At trial, Claud also sought to introduce evidence undermining

BHSH’s proffered reason for firing her by showing that Cassandra Brown

herself continued to maintain a good relationship with Claud even after her

termination. Specifically, Claud offered testimony and certain documents to

establish that Brown sent a letter to BHSH after Claud’s termination ending

her relationship with the firm and instructing BHSH that she wished to

retain Claud as the agent on the sale of her home (although at some future

date the firm was apparently advised by either Brown or her daughter Ham

that BHSH would retain the listing, and did so), which BHSH received at

some point after July 12, 2017. See Pl.’s Ex. 5; Tr. 149:16–18; Tr. 150:18–21;

Tr. 310:8–19. Claud also attempted to show that Brown so trusted Claud

that even after her termination, she gave Suffolk County police her name as

an emergency contact and asked them to contact Claud to come to her home

after Brown fell, which Claud did. See Tr. 140:22–141:2; Tr. 416:3–14; Tr.

419:19–21.

I do not rely on this evidence in my findings for several reasons. First,

while some of the evidence offered was not hearsay, a significant portion of

what was proffered was hearsay not subject to any exceptions (for example,

testimony that Claud received a phone call from Suffolk County police, who

told her that Brown had fallen, given them her name, and asked her to come

to the Brown home). Second, even if admissible and true, evidence of Brown’s

actions and feelings towards Claud are not relevant to whether Comnas had

a good faith belief at the time she terminated Claud that Claud had behaved

“rudely” towards Brown and/or Ham. Comnas was legally entitled to rely on

a single negative phone call without doing any further investigation and to

fire Claud for that reason—as long as that phone call was the actual reason

for her decision. Because of these admissibility and relevance problems, and

because I find that the other evidence at trial was more than sufficient to

meet Claud’s burden of establishing that Comnas’s claim that she fired Claud

2. Claud leaves the real estate profession

Claud’s time at BHSH left her financially disadvantaged and

emotionally drained. From commissions, Claud had earned a few thousand

dollars in her first year at Town & Country, and between $20,000 to $30,000

in her second year. Tr. 55:7–11. Then, at BHSH for the nearly eight months

between November 7, 2016, to June 30, 2017, Claud earned—and was fully

paid for—$8,067 in commissions. ECF No. 58, at 8; Tr. 95:13–97:4; Pl.’s Ex.

18. This came from the sale of one open listing at 26 Flying Point, Water

Mill, Southampton, New York; Claud was paid for this sale on June 2, 2017.

Tr. 96:18–25; Pl.’s Ex. 18. Still, the standard commission for exclusive

listings was between 5 to 6 percent of the actual selling price. See Pl.’s Ex.

17, at 2 (Exclusive Right to Sell Agreement for 117 Pulaski Street); Pl.’s Ex.

3, at 3 (Exclusive Right to Sell Agreement for 300 Moses Lane). Under her

agreement with BHSH, Claud was entitled to 50 percent of the commissions

BHSH earned on her exclusive listings. See Pl.’s Ex. 9, at 1 (BHSH policy

manual describing commission split between an agent and BHSH); Pl.’s Ex.

14, at 1 (Nov. 7, 2016, agreement stating that commissions would be

computed under BHSH’s policies); Pl.’s Ex. 15, at 1 (April 10, 2017,

agreement stating same). Had she remained at BHSH and completed these

sales, these would have included—in addition to any new listings she may

have obtained as her reputation and portfolio grew—the following:

• 117 Pulaski Street: This was listed for $1.695 million and, as Morris

recalled, Claud obtained offers ranging from $1.1 million to $1.5

million. Tr. 34:9–18; Tr., 72:9–73:15; see also Pl.’s Ex. 17, at 2. The

owner declined these offers, and Claud continued to market the

property before she was terminated. See Tr. 36:4–5; Tr. 97:5–9. It

eventually sold for $1.525 million. Tr. 35:5–7.

• 300 Moses Lane: This was listed for $799,000. Tr. 72:9–16. Claud

ultimately obtained four offers in the range of $500,000 each.

Tr. 108:4–23.

because of the June 29 phone call was pretextual, I do not consider the post-

June 30 evidence regarding Claud’s interactions with Brown in my findings.

• Two land lots in Southampton: These were listed for between

$500,000 to $600,000. Tr. 72:16–19.

In the first seven months Claud was at Nest Seekers, she made $10,851 in

commissions. ECF No. 58, at 10. But she was unable to get any of her

exclusive listings from BHSH back. Tr. 168:15–18.

Claud also gave detailed and credible testimony as to the emotional

toll of her termination. She was devastated by the sudden derailment of her

quest to become a real estate broker in the community where she was born

and raised: “They took everything from me that I worked for.” Tr. 172:6–7.

Throughout her testimony, and from the accounts of those who knew and

worked with her, a clear picture emerged of Claud’s potential for success

prior to her termination. The trial evidence established Claud to be a highly

motivated and creative young professional who was eager to learn and

relished the challenge of building a successful real estate practice. It was

also clear that Claud had the temperament, work ethic, and community ties

to do so, had her tenure at BHSH not been suddenly curtailed.

Claud became increasingly “sad,” “depressed,” and anxious in the wake

of her sudden termination and stalled career. See Tr. 171:19–20; Tr. 174:16.

A former star athlete, she was working out twice a week with a trainer and in

“superior shape” before being terminated, but that “totally” changed after her

firing. Tr. 172:3–7. And six years after being fired, Claud continues to

“check work e-mails so frequently because I’m so afraid . . . that “somebody

will treat me that cruel[ly] and malicious[ly] again.” Tr. 171:23–172:2.

Claud also described how she has suffered from “lasting humiliation.”

Tr. 171:20. While at BHSH, Claud had “paid hundreds of dollars, maybe a

thousand” to create and post a billboard with her photograph and the caption

“Shauncy Claud, Brown Harris Stevens” at the Southampton Racquetball

and Tennis Club. Tr. 168:7–10. Claud described, with evident pride, how

people she knew from the club had seen the billboard and called her to say

“oh, this is great.” Tr. 168:10–11. But when she was terminated, the

billboard was taken down and “people asked, ‘What happened, you’re not

with this company anymore?’” Tr. 168:10–14. Having to keep her answers to

questions like this “vague”—“especially with respect to potential clients”—

proved to be “embarrassing.” Tr. 168:24–169:5. As a result, Claud ultimately

made the painful decision to abandon her goal of becoming a successful real

estate broker in the Hamptons.16 See Tr. 170:19–171:4.

Claud also presented substantial testimony regarding her emotional

damages from Donna Fodera, LCSW. Before Claud began working at BHSH,

she was treated on a short-term basis by Fodera,17 a licensed clinical social

worker and experienced psychotherapist. Fodera had treated Claud from

approximately 2014 until 201518 for what Fodera described as “typical”

symptoms of mild anxiety in a young person who was no longer in college and

figuring out her early career path: “what they want to do in their life, and

where they fit in the world, things like that.” Tr. 340:5–17. It was “nothing

that raised a suspicion with me that it couldn’t be handled with . . . talk

therapy.” Tr. 340:19–20. Their sessions ended when Fodera took medical

16 Claud alleged that she learned from various sources, including a

senior director in the Hamptons real estate industry, that “other companies

wouldn’t hire me because Brown Harris Stevens blacklisted me,” i.e., that

BHSH had told other Hamptons brokerages that it had “fired [Claud] and not

to hire [Claud]” to stop her efforts “to get a similar job within our brokerage

community.” See Tr. 136:5–7; Tr. 138:6–139:9; Tr. 226:14–20.

I do not rely on Claud’s statement about what others in the industry

told her about BHSH’s actions for the truth of whether or not she was

“blacklisted.” But I admit her statement for the impact that information

leading her to believe she had been “blacklisted” had on Claud’s state of mind

and subsequent actions—namely, as discussed below, her decision to return

to school because she concluded that she no longer had realistic prospects of

building a successful real estate career in the Hamptons.

17 I qualified Fodera as an expert witness under Federal Rule of

Evidence 702. See Tr. 342:15; Tr. 353:18; Tr. 364:24–365:9. Fodera has a

college degree in psychology and a master’s degree in social work, is a

licensed clinical social worker, and has worked as a psychotherapist for over

15 years. Tr. 338:9–19.

18 Fodera did not have complete records from her treatment of Claud

during this time but was able to locate notes from March 2015 that

documented at least three sessions with Claud. Tr. 341:2–4.

leave to have cancer surgery in March 2015. Tr. 341:5–8. She did not refer

Claud to another therapist, because she had “no concern” about Claud’s

mental health at that time. Tr. 341:10–17.

That changed after Claud’s termination from BHSH. Claud, who had

last seen Fodera in March 2015, reached out to Fodera in September 2017

and “begg[ed]” to see her again. Tr. 342:13–343:6, 344:14–18. Although

Fodera was undergoing chemotherapy, she agreed to see Claud on a short-

term basis in light of the urgent circumstances. See Tr. 343:4–19, 354:16–25.

Fodera’s testimony credibly and powerfully corroborated Claud’s account of

her pain, suffering, and anxiety following her termination. See Tr. 356:10–

23. As Fodera observed, Claud suffered from an inability to sleep, extreme

anxiety, hopelessness, feelings of dread, self-loathing, and shame. Tr.

344:17–18; Tr. 356:6–10. In her second session with Fodera, for example,

Claud reflected on the fact that “someone else at the job wasn’t terminated

[for alleged misconduct] and that [Claud] was,” making her wonder, “is this

racism?” Tr. 344:9–13. To Fodera, Claud’s “sense of self” appeared

“destroyed” after BHSH fired her. See Tr. 366:10–12. Fodera observed Claud

—who had been given no explanation at that time as to why she was

terminated—eventually come to the conclusion that her firing may have been

because of “racial discrimination.” Tr. 353:10. “That hit [Claud] hard and we

talked about that.” See Tr. 398:18–20. Fodera ultimately diagnosed Claud

with Post-Traumatic Stress Disorder (“PTSD”).19 See Tr. 352:13–14.

19 Claud offered into evidence an April 24, 2018, letter from Fodera

summarizing her treatment notes; defendant objected that the letter was not

contemporaneous with Fodera’s treatment of Claud and was prepared in

anticipation of litigation. See Tr. 347:6–351:5; Tr. 361:22–362:19, Tr. 363:6–

10; Tr. 402–04. I sustained defendant’s objection and declined to admit the

letter. Tr. 404:23–24. However, Fodera had a clear, independent recollection

of her treatment of Claud. I credit her recollection that she wrote “PTSD” in

her treatment notes and preparing insurance paperwork with that diagnosis,

despite not having saved those notes. See Tr. 349:5–18, Tr. 375:13, Tr. 379:4–

6. Fodera was undergoing chemotherapy while seeing Claud, yet the

chemotherapy did not “negative[ly] impact” Fodera’s memory. Tr. 369:2–4.

In September 2017, while in treatment with Fodera, Claud started

taking college classes again. See Tr. 170:16–19. A few months later, in

January 2018, she enrolled as a full-time student at SUNY Oswego. Tr.

170:20–171:1. The next year, in December 2019, she completed her

undergraduate degree in finance and economics, graduating with a 3.7 GPA

and honors. Tr. 196:12–13. While at SUNY Oswego, she became the chief

financial officer of her school’s investment club and was a member of the

Women in Business committee. Tr. 196:24–197:3.

Yet Claud’s decision to return to school was not without challenges.

She no longer lived close to her extended family, as SUNY Oswego was seven

hours away from the Hamptons. See Tr. 172:18–20 Claud continued to

suffer from depression and anxiety and saw additional therapists—and

.

continues to see one to this day. Tr. 173:1–8. On the recommendation of one

of her therapists, she also consulted with a psychopharmacologist, and was

prescribed sertraline medication to assist with anxiety and depression.

Tr. 173:17–174:16.

In 2021, Claud moved to Atlanta, Georgia, where she resides today.

Tr. 45. She is currently pursuing a master’s degree in legal studies at West

Virginia University. Claud began taking courses in May 2022 and at the

time of trial held a 4.0 grade point average. Tr. 197–98.

II. CONCLUSIONS OF LAW

Under the Agreement, Claud was an at-will agent: at any time, she or

BHSH could end her association with BHSH for any non-discriminatory

reason. ECF No. 58, at 8; Pl’s. Exs. 14, 15 (Independent Agent Agreements).

As all parties agree, the sole issue in dispute is whether BHSH, in

terminating Claud, did so in retaliation against her for reporting her

Ultimately, however, whether Claud met the full diagnostic criteria for PTSD

and was contemporaneously diagnosed as such by Fodera is not essential to

my assessment of Claud’s non-economic damages. Regardless of her formal

diagnosis, there is no question that Claud suffered from significant,

deleterious, and prolonged mental health effects because of her termination

from BHSH.

concerns about race discrimination at BHSH, in violation of 42 U.S.C. § 1981.

See ECF No. 58, at 3–4; Pl. Proposed Conclusions of Law, ECF No. 65; Def.

Proposed Conclusions of Law, ECF No. 66. More specifically, the parties

agree that the outcome of this trial turns on whether the evidence shows that

BHSH’s proffered reason for terminating Claud’s contract—that she was

“rude” to a client and/or the client’s daughter, as reportedly asserted in a

phone call to Comnas on June 29, 2017—was the actual reason for Claud’s

termination, or whether it was instead a pretext for BHSH’s unlawful

retaliation against her.

As discussed infra, I find that Claud has readily met her burden of

proving pretext under § 1981. Claud has proven by a preponderance of the

evidence that BHSH intentionally retaliated against her after she

complained of discriminatory treatment in the workplace on or about June

14, 2017, and terminated her for that reason, not because of the information

Comnas allegedly learned about Claud’s “rudeness” in a June 29, 2017, phone

call. I further find that Claud is entitled to an award of both compensatory

and punitive damages.

A. Liability under Section 1981

Section 1981 protects the rights of all persons—regardless of race—to

make and enforce contracts, and, in doing so, to be free from retaliation. See

CBOCS W., Inc. v. Humphries, 553 U.S. 442, 445 (2008). Here, Claud argues

that she engaged in an activity protected under § 1981 when she reported her

concerns about what she perceived as a pattern of discriminatory treatment

towards her by a White supervisor, and that BHSH terminated her because

she engaged in that protected activity.

1. Background

The history and tradition of § 1981 bear on the retaliation claim at

issue in this case. Just after the Civil War, Congress passed the Civil Rights

Act of 1866 to guarantee then-newly freed slaves the “same legal rights that

other citizens enjoy.” See Humphries, 553 U.S. at 448. In its original form,

§ 1981 provided:

All persons within the jurisdiction of the United States shall have

the same right in every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and to the full and

equal benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens, and shall be

subject to like punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

Lauture v. Int’l Bus. Machines Corp., 216 F.3d 258, 260–61 (2d Cir. 2000)

(quoting Runyon v. McCrary, 417 U.S. 160, 164 n.1 (1976) (setting forth

statute)). One hundred and twenty-three years after the passage of § 1981,

the U.S. Supreme Court limited the scope of § 1981 from applying to “conduct

by the employer after the contract relation has been established, including

breach of the terms of the contract or imposition of discriminatory working

conditions.” Id. at 260 (quoting Patterson v. McLean Credit Union, 491 U.S.

164, 177 (1989)). Patterson, left unchecked, would have excluded retaliation

claims from § 1981. See Humphries, 553 U.S. at 451.

But Congress responded. In 1991, Congress added a new subsection

(b) to § 1981 that defined “make and enforce contracts” to include the

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

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

relationship.” Id. at 450. With this language, Congress sought to “bar all

racial discrimination in contracts”—including “retaliation.” H.R. Rep. 102-

40, 37 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 730–31. The Second

Circuit and circuits across the country then concluded that § 1981

encompassed retaliation claims, and, in 2008, the U.S. Supreme Court

followed suit. See Humphries, 553 U.S. at 451 (citing inter alia Hawkins v.

1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998)).

Second Circuit courts analyze retaliation claims under § 1981 using

the same burden-shifting framework that applies to Title VII retaliation

claims: McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See

Hicks v. Baines, 593 F.3d 159, 163–64 (2d Cir. 2010). A plaintiff must first

establish a prima facie case of retaliation. See Duplan v. City of New York,

888 F.3d 612, 626 (2d Cir. 2018) (citing Hicks, 593 F.3d at 164). This creates

a “presumption of retaliation,” and the defendant employer then bears the

burden to offer a “legitimate, non-retaliatory reason” for its action. Ya-Chen

Chen v. City Univ. of New York, 805 F.3d 59, 70 (2d Cir. 2015). If the

defendant does so, the presumption “dissipates,” and the plaintiff then has

the burden to show “that the desire to retaliate was the but-for cause of the

challenged employment action”—that the retaliation was pretextual. Id. Of

course, McDonnell Douglas is “not a rigid ritual, but simply an orderly way to

evaluate proof when discrimination is claimed.” Dister v. Cont’l Grp., Inc.,

859 F.2d 1108, 1112 (2d Cir. 1988) (citing U.S. Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711, 715 (1983)).

2. Prima facie case

To establish a prima facie case of retaliation, an employee must 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.” Littlejohn v. City of New York, 795 F.3d 297, 315–16 (2d Cir. 2015)

(quoting Hicks, 593 F.3d at 164). A plaintiff’s burden at this step is

“minimal” and “not onerous.” Bucalo v. Shelter Island Union Free Sch. Dist.,

691 F.3d 119, 128 (2d Cir. 2012) (quoting St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 506 (1993); Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248,

253 (1981)).

To show participation in a (1) protected activity of which (2) an

employer is aware, a plaintiff must show that she opposed statutorily

prohibited discrimination in a way that “put the employer on notice” that “the

employee feels that [the employee] has been the object of discrimination.”

Fouche v. St. Charles Hosp., 64 F. Supp. 3d 452, 458 (E.D.N.Y. 2014) (quoting

Hayes v. Cablevision Sys. New York City Corp., No. 07-CV-2438 (RRM), 2012

WL 1106850, at *16 (E.D.N.Y. Mar. 31, 2012)). A plaintiff may show

evidence of “informal protests of discriminatory employment practices,

including making complaints to management.” See Littlejohn, 795 F.3d at

317 (citation omitted).

Here, Defendant does not dispute that if Claud approached Cia

Comnas—or any other person in BHSH management—to report concerns

about what she viewed as a pattern of discriminatory treatment by Nelson

based on race, she satisfies these elements of her prima facie case.

Defendant also agrees that Claud need not show that Nelson had

discriminated against her, but only that she held a good-faith belief that

Nelson had engaged (or was engaging) in such discriminatory conduct.

Defendant argues instead that Claud never communicated any such concern

to Comnas, whether on June 14, 2017, or at any other time before her

termination.

In line with my factual findings, however, I find that Claud has

satisfied the first two prima facie elements. Claud met with Comnas on June

14, 2017, to discuss her concerns about Nelson’s conduct towards her.

Tr. 91:12–92:16. At that meeting, she clearly and specifically articulated her

belief that, inter alia, Nelson had not provided “the support that I see him

provide to my White colleagues.” See Tr. 92:14–16. Claud thus engaged in a

protected activity that gave BHSH “general corporate knowledge that

plaintiff had engaged in a protected activity.” See Gordon v. New York City

Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000).

Claud has also met her burden under the remaining prima facie

elements: she suffered a (3) adverse employment action when her association

with BHSH was terminated, and (4) has shown a causal connection between

the protected activity and the adverse employment action. A plaintiff can

show a causal connection in a retaliation claim 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 the

defendant.” Littlejohn, 795 F.3d at 319 (quoting Gordon, 232 F.3d at 117).

The Second Circuit has not “drawn a bright line to define the outer limits” of

when a protected activity and retaliation might be “too attenuated to

establish a causal relationship,” id., but courts in this circuit have upheld

causal inferences based on lapses of up to eight months. See Caputo v.

Copiague Union Free Sch. Dist., 218 F. Supp. 3d 186, 194–95 (E.D.N.Y. 2016)

(collecting cases). Here, Comnas fired Claud on June 30, just two weeks after

Claud met with Comnas to report what she perceived as a longstanding

pattern of race discrimination by her direct supervisor. See Parts I.A.3 & I.B,

supra. Claud’s termination is clearly close enough in time to Claud’s

protected activity to infer an indirect causal connection between the two

events.

3. Legitimate, non-retaliatory reason

The burden now shifts to BHSH to show a “legitimate, non-retaliatory

reason for the adverse employment action.” Ya-Chen Chen, 805 F.3d at 70.

At this stage, a court focuses not on the “truth of the allegations” against a

plaintiff, but only on what “motivated” the employer. Vasquez v. Empress

Ambulance Serv., Inc, 835 F.3d 267, 275 (2d Cir. 2016) (citing McPherson v.

N.Y.C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2010)) (emphasis original).

The employer bears the burden of production at this stage to “rebut the

inference of discrimination that arises from proof of the prima facie case” and

to “frame[] the factual issue with sufficient clarity to afford the employee a

full and fair opportunity to demonstrate pretext.” Meiri v. Dacon, 759 F.2d

989, 996–97 (2d Cir. 1985). “To this end, the employer’s explanation of its

reasons must be clear and specific.”20 Id. at 997.

20 Courts have considered “legitimate” a wide range of reasons for

employers’ actions. Compare, e.g., Yu v. N.Y.C. Hous. Dev. Corp., 494 F.

App’x 122, 126 (2d Cir. 2012) (pointing to how a plaintiff “failed to complete

projects assigned to him,” “spoke to his coworkers in an unprofessional

manner,” and “failed to follow instructions and often deviated from assigned

tasks and questioned the work of others, while failing to complete his own”)

and Robinson v. Zurich N. Am. Ins. Co., 892 F. Supp. 2d 409, 429 (E.D.N.Y.

2012) (finding that “complaints about plaintiff’s communication style” and

concerns regarding the accuracy of her reports were legitimate, non-

discriminatory reasons for termination) with Ya-Chen Chen, 805 F.3d at 74–

75 (citing an assistant professor’s lack of “collegiality” as a legitimate basis

for not renewing her contract). It bears noting that the sorts of interpersonal

difficulties cited in cases such as these may, in fact, be performance related—

or they may not be.

In some contexts, however, an employer’s negative assessment of an

employee’s “professionalism,” “civility,” or “collegiality” may disguise or be

used to justify biases against racial, ethnic, religious, or gender minorities

that are “not necessarily job-related.” See Sahar F. Aziz, Coercing

Assimilation: The Case of Muslim Women of Color, 18 J. GENDER RACE &

JUST. 389, 397 (2016). Courts would do well to scrutinize such reasons when

offered to ensure that they are both legitimate and performance-based.

Here, Comnas claims she terminated Claud because of “how

outrageously rude Shauncy was to [Ham] and her mother.” Pl.’s Ex. 2, at 2;

see also Tr. 269:13 15. BHSH contends that the termination, while involving

an “admittedly unpleasant interaction involving a client,” stemmed from

–

“non-discriminatory circumstances.” ECF No. 66, at 51.

Under the foregoing caselaw, BHSH has clearly proffered a legitimate,

non-retaliatory reason for Claud’s termination. If the report of Claud’s

alleged “rudeness” that Comnas received by phone on June 29, 2017, were the

actual reason for Claud’s termination, that would suffice to rebut Claud’s

prima facie showing of retaliation and ultimately defeat Claud’s retaliation

claim on the merits. As discussed below, however, I find that this was not

BHSH’s actual motivation for firing Claud, but was instead a pretext for

retaliation.

4. Pretext

The “viability” of Claud’s § 1981 claim “rises [or] falls” under the third

McDonnell Douglas step, where she must “point to evidence that reasonably

supports a finding of prohibited discrimination.” See Phillips v. City of New

York, 304 F. Supp. 3d 305, 313 (E.D.N.Y. 2018) (quoting Mario v. P & C Food

Markets, Inc., 313 F.3d 758, 767 (2d Cir. 2002)). Such a showing “does not

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.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d

Cir. 2013).

At this step, a fact finder “need not, and indeed should not, evaluate

whether a defendant’s stated purpose is unwise or unreasonable.” DeMarco

v. Holy Cross High Sch., 4 F.3d 166, 170–71 (2d Cir. 1993). Instead, the

question is simply whether the “articulated purpose [was] the actual purpose

for the challenged employment-related action.” Id. at 171. Here, BHSH’s

articulated reason for firing Claud was not its actual reason. The

termination’s temporal proximity to Claud’s reports of discrimination,

procedural irregularities, and circumstantial inconsistencies—all

underpinned by the lack of credibility of BHSH’s primary decisionmaker—

readily meet Claud’s burden of establishing that BHSH’s reason for firing

Claud was pretextual.

Temporal proximity. First, courts have considered temporal

proximity to support a finding of pretext. In Zann Kwan, an at-will employee

complained of gender discrimination and was fired approximately three

weeks after. 737 F.3d at 838–39, 847. In Phillips, a Black assistant

commissioner at the New York City fire department told an independent

consultant that racial discrimination in the department was broader than

prior Title VII litigation had revealed. 304 F. Supp. 3d at 308, 314. She was

fired three days later—a timing that a finder of fact could well find was “not

mere coincidence.” Id. at 314. As in these cases, the two-week gap between

Claud’s complaint and firing supports an inference of retaliation. See ECF

No. 65, at 6.

BHSH points to multiple cases in this circuit that essentially explain

that “temporal proximity alone is not enough” to establish pretext. ECF

No. 66, at 46 (quoting Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 254 (2d

Cir. 2014). This is true. Still, a plaintiff may rely on “evidence comprising

her prima facie case, including temporal proximity . . . coupled with evidence

of falsity in the employer’s explanations” to support a finding of retaliation.

Zann Kwan, 737 F.3d at 847. Here, the temporal proximity is significant,

particularly since Claud was away on a pre-planned vacation for

approximately half of the two-week time period that elapsed between these

events. But it is only one factor among many. I find that such additional

evidence is reflected in, among other things, the procedures surrounding

Claud’s firing and BHSH’s inconsistent and incredible explanations behind it.

Procedural irregularities. Second, procedural irregularities in a

termination can support a finding of pretext. See Desir v. Bd. of Co-op. Educ.

Servs. (BOCES) Nassau Cnty., 803 F. Supp. 2d 168, 177 (E.D.N.Y. 2011),

aff’d, 469 F. App’x 66 (2d Cir. 2012). “[D]epartures from procedural

regularity . . . can raise a question as to the good faith process where the

departure may reasonably affect the decision.” Stern v. Trustees of Columbia

Univ. in the City of N.Y., 131 F.3d 305, 313 (2d Cir. 1997). “Because an

employer who discriminates is unlikely to leave a ‘smoking gun’ attesting to a

discriminatory intent,” a terminated employee “is usually constrained to rely

on circumstantial evidence.” Chambers v. TRM Copy Centers Corp., 43 F.3d

29, 37 (2d Cir. 1994).

Here, Comnas decided to fire Claud by the time she emailed Nelson—

just ten minutes after Ham called Comnas to complain about her earlier

phone call with Claud. See Tr. 249:20–25; Tr. 256:2–5; Tr. 268:6–8. Of

course, Claud was an at-will, independent contractor under the Agreement,

which gave BHSH broad latitude to terminate her; neither the Agreement

nor any applicable law required BHSH to give Claud prior notice or an

opportunity to be heard prior to her firing. See Pl’s Ex. 14. But plaintiff has

still shown that the circumstances suggest significant irregularities—i.e.,

notable contrasts from the steps that an employer who was actually

motivated by a good faith belief that an agent like Claud, with a brief but

otherwise unblemished tenure at the firm, may have been “rude” to a client’s

daughter would follow, as opposed to one who was seizing on a pretextual

reason to fire that agent.

Among other reasons, it strains credulity that if this single phone call

were the actual reason for firing Claud, Comnas would not have at least

attempted to speak with Claud to learn her side of the story before

summarily terminating her, lest Comnas learn that this had all been a

misunderstanding, or (as Claud contends was actually been the case) the

“rudeness” was a fabricated allegation by a disgruntled and financially-

interested family member of a client. But, as discussed above, I find

Comnas’s claim that she attempted to reach Claud to be contradicted by the

record. See Part I.B.4, supra.

Another procedural irregularity came when Comnas made a point of

informing her subordinate on June 30 that Ham was in the process of getting

power of attorney over her mother’s financial affairs, within hours of when

Claud was terminated. Yet Comnas did so without any evidence that Brown

was unable to manage or make decisions about the sale of her home. This

further suggests a pattern of post hoc justification of her pretextual actions in

firing Claud, i.e., a step she took only after learning that Karen Ham, who

made the phone call seized on by BHSH as a reason to fire Claud, was not

actually the firm’s “client” at all. See Part I.B.5, supra.

Inconsistencies. Third, “[a] plaintiff may prove that retaliation was

a but-for cause of an adverse employment action by demonstrating

weaknesses, implausibilities, inconsistencies, or contradictions in the

employer’s proffered legitimate, nonretaliatory reasons for its action.” Zann

Kwan, 737 F.3d at 846–47 (noting a jury could plausibly infer pretext where a

defendant shifted from a change in business focus to a plaintiff’s poor

performance when giving reasons for terminating a plaintiff). Here, Comnas:

• Claimed the call came from a number (Ham’s) matching the number on

the Brown home’s property listing, yet Claud had never made a call to

or from that number before June 30 and could not have entered the

number on the listing, see Tr. 515:17–516:21;

• Claimed that both Ham (who was not the client with whom BHSH had

any contractual relationship) and Brown (the actual client) called her

and complained about Claud’s conduct, but wrote down only Ham’s

name in her handwritten call notes and described Ham to Nelson as

“[a] client whose small exclusive [Claud had] on Moses Lane just called

to tell me how outrageously rude [Claud] was to her and and her

mother,” see Tr. 247:12–18; Pl.’s Ex. 2; Pl.’s Ex. 2, at 2;

• Claimed, at trial, that changing the office locks after an employee’s

termination was standard office policy, but emailed Nelson on June 29

to specifically direct him to change the lock after Claud’s firing, see Tr.

263:16–25, because, in Comnas’s view, Claud was “someone who could

easily try to break in and do damage after being fired,” see Pl.’s Ex. 2—

despite repeatedly admitting that Claud had no history of hostility,

violence, or threats towards anyone, see Tr. 264:3–20; Tr. 265:1–6; Tr.

269:16–17; and

• Claimed she took this action in part because Claud’s “rudeness”

reflected poorly on BHSH and meant that Claud “needed” to be fired

immediately, but had no way of knowing whether any information

about the call had gone beyond Claud, Ham, and Brown. Comnas also

claimed to have no recollection of an earlier high-profile incident

involving Roxanne Briggs,21 a White agent who was not terminated

21 At trial, no extrinsic evidence was offered as to Briggs’s personnel

history. But Leggard and Claud knew that Briggs continued to work at

that was prominently reported in a widely read newspaper (Page Six of

the New York Post) who was arrested and criminally charged for

allegedly throwing a wine glass at another person at a local

restaurant, and which was, according to former BHSH employee

Leggard, the “talk [of] the town.” See Part I.B.5, supra.

These inconsistencies and contradictions—and the temporal proximity

and procedural irregularities—surrounding Claud’s firing readily satisfy

Claud’s burden of rebutting the reason proffered by BHSH for terminating

her.

* * *

In sum, I conclude that (1) BHSH’s proffered reason for firing Claud

was, in fact, wholly pretextual, and (2) the actual reason Claud was

summarily terminated as an agent with BHSH was retaliation—i.e., a

consequence of the fact that Claud had just reported to BHSH’s Executive

Managing Director, Cia Comnas, what Claud perceived to be a pattern of

unlawful race-based discrimination by her direct supervisor, who was also

Comnas’s close colleague and direct report. The evidence at trial clearly

established that BHSH did not fire Claud because of any good-faith concerns

about her professionalism or temperament. Instead, BHSH seized on a single

negative phone call from a third party as a golden opportunity to terminate

the firm’s only Black real estate agent, just two weeks after that agent had

the courage to raise serious concerns about race discrimination by the

Southampton office’s senior manager.

Under § 1981, BHSH is thus liable for unlawful retaliation.

B. Damages

Section 1981 “provides for awards of compensatory and punitive

damages for race-based discrimination,” which includes cases in which a

plaintiff has established an employer’s liability for unlawful retaliation.

BHSH following the incident, and Nelson, who is still at BHSH, confirmed

that Briggs continues to work at BHSH. See Tr. 27:10–16; Tr. 177:23–178:2;

Tr. 508:25–509:9.

Quintero v. Angels of the World, Inc., No. 19-CV-6126 (DG), 2021 WL

4464123, at *13 (E.D.N.Y. Sept. 10, 2021) (citing Johnson v. Railway Express

Agency, 421 U.S. 454, 459–60 (1975)), report and recommendation adopted

sub nom. Quintero v. Stoupas, No. 19-CV-06126 (DG) (RLM), 2021 WL

4463488 (E.D.N.Y. Sept. 29, 2021). Claud seeks $600,000 in compensatory

damages—$450,000 of which she asserts can be attributed to lost income and

$150,000 for emotional distress—and $100,000 in punitive damages. ECF

No. 65, at 9, 13, 14. BHSH contends that “no damages are warranted”

because it denies any underlying violation of § 1981. ECF No. 66, at 51.

1. Compensatory damages

In the Civil Rights Act of 1991, Congress stated that “limitations

imposed on damage awards under Title VII should ‘not be construed to limit

the scope of, or the relief available under, section 1981 of this title.’” Tomka

v. Seiler Corp., 66 F.3d 1295, 1316–17 (2d Cir. 1995) (quoting 42 U.S.C.

§ 1981a(b)(4)). Still, as other courts have done, I evaluate economic and non-

economic damages informed by Title VII principles where appropriate.

a. Economic damages

Back pay serves to “make persons whole for injuries suffered through

past discrimination.” Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d

Cir. 1996) (citation omitted). Unlike Title VII, which limits back pay awards

to two years, “§ 1981 permits unlimited backpay.” Tomka, 66 F.3d at 1316.

While Title VII limits damages based on employer size, § 1981 does not. Id.

A plaintiff seeking back pay “need not prove the amount of loss with

mathematical precision,” but may recover back pay only to the extent that

the evidence offers a “sufficient basis” for estimating an amount “with

reasonable certainty.” Sir Speedy, Inc., v. L&P Graphics Inc., 957 F.2d 1033,

1038 (2d Cir. 1992).

A court calculates back pay from the date of the discriminatory

practice to the date of entry of judgment. Sands v. Runyon, 28 F.3d 1323,

1327 (2d Cir. 1994). Commissions are an “integral part of an employee’s

compensation” and “must be included in a back pay calculation if they can be

predicated with reasonable certainty.” Rivera v. Baccarat, Inc., 34 F. Supp.

2d 870, 874 (S.D.N.Y. 1999) (citation omitted). A court will then see if a

plaintiff fulfilled the duty to mitigate damages by “using reasonable diligence

in finding other suitable employment.” Jowers v. DME Interactive Holdings,

Inc., No. 00 Civ. 4753 LTS KNF, 2006 WL 1408671, at *10 (S.D.N.Y. May 22,

2006) (alterations omitted) (citing Clarke v. Frank, 960 F.2d 1146, 1152 (2d

Cir. 1992)). Here, I discuss Claud’s request for back pay, followed by my own

calculation of back pay.

Claud’s request. Claud requested $450,000 in compensatory

damages for lost income. ECF No. 65, at 9. Her request is “based on the

statement to her by Nelson that the average agent would earn $150,000 per

year.” Id. As discussed infra, I find that there is credible evidence that

Claud did perform at a high level in her approximately eight months at

BHSH, and I recognize that Claud’s commission-based income and sudden

termination makes it “difficult to calculate her precise damages,” as she

points out. See id. But there are two problems with Claud’s request that I

calculate damages at an average likely yield of $150,000 per year.

First, while I have no doubt that Claud honestly recalls that Nelson

“guaranteed” this amount to her in their first meeting, on this point, I credit

Nelson’s testimony that he did not make any such promise, because it would

not have been his practice to do so when recruiting an independent agent,

particularly one with a relatively short tenure in the industry. Compare

Tr. 58:21–22 with Tr. 482:3–6. I believe it is far more likely that Nelson, in

his efforts to recruit Claud to BHSH, simply estimated $150,000 as the

amount that new agent might make from yearly commissions over time if she

performed well, and that Claud may be honestly but mistakenly recalling his

words as a “guarantee.” Nevertheless, because neither Claud nor any other

witness testified to any estimate—even a rough one—as to her likely

commission rate over time, I cannot rely on such an estimate (based on

Claud’s memory of what Nelson may have told her in their first meeting) to

calculate back pay.

Second, other than her history with the listings she actually obtained

while at BHSH, Claud provided little evidence from which I may reasonably

estimate what her annual commissions would have been had she not been

terminated. Claud contended that, since she “approximately quadrupled her

income between years one and two” at Town & Country, her prior brokerage,

it is “not unreasonable” to estimate that Claud would have increased her

business (even if not quadrupling her income) each year had she remained at

BHSH. ECF No. 65, at 10. I agree that a general estimation of increased

business over time is a “not unreasonable” assumption—but converting that

assumption into an estimated rate of increase over time would require

considerable speculation. Most notably, Claud presented no testimony on

projected commissions earned by a broker of comparable experience,

community ties, and track record from any expert in the field. She offered

neither a retained expert familiar with the Hamptons real estate market, nor

testimony from any of BHSH’s own directors or other personnel regarding

commissions paid to other (non-terminated) agents with comparable skills,

experience, and local connections. I recognize that Claud has limited

financial resources in the wake of her firing and has spent several years as a

student in an effort to rebuild her career; these factors may have made it

difficult for her to afford the cost of an economic damages expert prior to any

finding as to liability. But I cannot rely on evidence that was not presented

to make those calculations.

This leaves Claud’s record of exclusive listings, rentals, and sales.

Claud sold one open listing for $8,067 in her eight months at BHSH. Pl.’s

Ex. 18. Claud further contends that if she had been able to stay at BHSH

and sell the four exclusive listings she had at the time of her termination, she

would have earned $75,625. ECF No. 65, at 9. Since the $8,067 from her one

completed sale was earned in just under eight months, Claud argues, $8,067

should be doubled and added to her projected agent’s commission based on

the listed sale prices of her four exclusive listings at BHSH of $75,625, for a

one-year income of $91,759. Id. at 10. In the alternative, Claud requests

damages based on the $8,067 she earned at BHSH and $10,851 she earned in

her first seven months at Nest Seekers, leading to an estimated annual rate

of back pay of $18,918. Id. at 11. Again, the record does not contain

information as to whether all four properties she had secured as exclusive

listings at BHSH actually sold and at what price; nor does it include expert

testimony, salary/commission averages, or other evidence establishing what

an agent in Claud’s position in the Hamptons might expect to earn on an

annual basis, so I decline to use Claud’s formulation as the basis for my

calculation of damages.

Back pay calculation. On the current record, Claud’s back pay can

still be calculated with reasonable precision by estimating her annual

commissions based upon the one sale she completed while at BHSH,

combined with the known final sale price of one of her four exclusive listings

at the time of her termination. In Rivera v. Baccarat, Inc., one of the few

employment discrimination cases in this circuit to consider back pay based on

commissions, a Title VII plaintiff had worked at a tableware store and

received a salary plus commissions that fluctuated from year to year. 34 F.

Supp. 2d at 874. To identify base compensation for a back pay calculation,

the court combined the plaintiff’s base pay along with average commissions

the plaintiff had earned over her four-year employment. Id.

Unlike the plaintiff’s compensation in Rivera, Claud’s compensation

came only from commissions. See Pl.’s Ex. 14, at 1 (detailing commission

policy in Agreement); Pl.’s Ex. 15, at 1 (same). But a conservative estimate

based on established sales history for a subset of her portfolio is still feasible.

This estimate reflects Claud’s work generating leads and cultivating

relationships to do so—the work Claud was doing when she was terminated

after just under eight months. Thus, rather than limit Claud’s back pay

calculation to the $8,067 from Claud’s one open listing whose sale was

completed prior to her termination, I look to what else the record allows me

to conclude with “reasonable certainty” she was likely to have earned from

her other listings had she not been terminated. See Rivera, 34 F. Supp. 2d at

874.

Reginald Morris, the owner of 117 Pulaski Street, testified that Claud

obtained an offer for $1.5 million and that his house ultimately sold for

$1.525 million. Tr. 34:9–12; Tr. 35:5–7. Since Morris trusted Claud and had

only highly positive things to say about her performance, I find it is

reasonably certain that had she not been terminated, Claud would have

completed the sale on Morris’s home for at least the price at which it

eventually sold at another brokerage. While the date of the sale is not in the

record, given the progress Claud had made on the property as of the date of

her termination, and the fact that it ultimately sold for only slightly above

the last offer she had received, I find it reasonably certain that Claud would

have sold the property within the first year of her contract with BHSH had

she not been wrongfully terminated in June 2017. At a sale price of $1.525

million, Claud would have earned half of a five percent commission on that

sale ($76,250), or $38,125. See Pl.’s Ex. 17, at 2.

By contrast, the record contains no evidence as to whether 300 Moses

Lane eventually sold, and at what price; or whether the two Southampton

lots sold, and at what price. Thus, I cannot reasonably include estimated

commissions from those properties. See Tr. 72:9–73:15; Tr. 108:4–23; see also

Part I.C.2, supra (listing properties).

To calculate her estimated base rate of compensation, I add $8,067

from her sale of one open listing to $38,125 from the sale of 117 Pulaski

Street, for a total estimated annual base rate of compensation of $46,192. I

then divide $46,192 by 52.143 weeks (the average amount of weeks in a year

when a 365-day year is divided by 7-day weeks) to calculate her weekly base

rate of compensation: $885.87. See, e.g., Becerril v. E. Bronx NAACP Child

Dev. Ctr., No. 08 Civ. 10283(PAC)(KNF), 2009 WL 2611950, at *3 (S.D.N.Y.

Aug. 18, 2009) (awarding $95,000 in back pay after dividing Title VII

plaintiff’s $65,000 annual salary by fifty-two weeks to get a base amount of

$1,250 per week and multiplying that by seventy-six weeks between the

dates of termination and default judgment), report and recommendation

adopted sub nom. Becerril v. E. Bronx NAACP Child Dev. Ctr., No. 08 Civ.

10283 (PAC)(KNF), 2009 WL 2972992 (S.D.N.Y. Sept. 17, 2009); Joseph v.

HDMJ Rest., Inc., 970 F. Supp. 2d 131, 150 (E.D.N.Y. 2013) (multiplying

plaintiff’s $450 weekly income by 4 1/3 weeks, the average amount of weeks

in a month, to determine five months of income leading to a Title VII back

pay award). From the date of termination to the date of this judgment,

309.71 weeks have elapsed. Had Claud not been wrongly terminated from

BHSH, she stood to earn at least $274,367.07 in the intervening years.

It bears noting that the foregoing is an extremely conservative

estimate of Claud’s economic damages. Given Claud’s local contacts, drive,

performance history (at both Town & Country and BHSH), it is highly likely

that the commissions she earned in her first year at BHSH would have

increased substantially—even exponentially—as her business and experience

grew. It also seems highly likely that Claud would have earned commissions

within her first year on at least one, if not more than one, of the other three

exclusive listings that she held at the time of her termination. Still, for the

reasons noted above, the law does not permit me to award damages for a

projected increase in commissions that is not supported by a sufficient

evidentiary foundation.

As for mitigation of damages, Claud sought employment immediately

after BHSH terminated her, and about two weeks later, Claud had secured a

new position at Nest Seekers. ECF No. 58, at 10. She earned $10,851 in

commissions over seven months. See id. But after making a reasonable

determination that her termination from BHSH left her with no viable path

to succeed in the Hamptons real estate industry, she left Nest Seekers and

the industry soon after, deciding instead to continue her education at SUNY

Oswego and West Virginia University. See Tr. 194–98; Part I.C.2, supra; see

also Dailey v. Societe Generale, 108 F.3d 451, 457 (2d Cir. 1997) (holding, in a

Title VII case, that a plaintiff had mitigated damages when the plaintiff

attended school after “diligent efforts to find work prove[d] fruitless”).

Subtracting the $10,851 in commissions that she earned at Nest

Seekers from the total of $274,367.07 in estimated commissions she would

have earned had she remained at BHSH, Claud is entitled to a total net

award of back pay of $263,516.07.

b. Non-economic (emotional distress) damages

Courts in the Second Circuit put compensatory damages for emotional

distress into three categories—garden-variety, significant, or egregious:

In garden-variety claims, the evidence of emotional harm is

limited to the plaintiff's testimony, which describes his or her

injuries in vague or conclusory terms, and fails to relate the

severity or consequences of the injury. These claims typically lack

extraordinary circumstances and are not supported by medical

testimony. Significant emotional distress claims are based on

more substantial harm or offensive conduct and may be supported

by medical testimony, evidence of treatment by a healthcare

professional, and testimony from other witnesses. Egregious

emotional distress claims yield the highest awards and are

warranted only where the employer’s conduct was outrageous and

shocking or affected the physical health of the plaintiff.

Sooroojballie v. Port Auth. of New York & New Jersey, 816 F. App’x 536, 546

(2d Cir. 2020) (citations omitted). To assess whether an award for emotional

distress is appropriate, courts consider the “amount, duration, and

consequences of the claimant’s emotional distress.” Quintero, 2021 WL

4464123, at *15 (citations omitted).

Claud experienced significant emotional distress from her wrongful

termination. This included shame and humiliation: Claud received no

explanation from BHSH as to why she had been let go, but prospective clients

and community members noticed. See Tr. 168:13–14 (“[P]eople asked, they

said: What happened, you’re not with this company anymore?”). Yet Claud

could give no reputation-saving answer and had to “tr[y] to keep it vague”

when asked, “especially with respect to potential clients.” Tr. 168:24–169:1.

After filing this lawsuit, she also suffered the embarrassment of

learning that Comnas, a former supervisor and senior executive whom she

“trust[ed]” and believed she could confide in, see Tr. 91:3, had referred to her

in an email as “the type of person who could come back and do damage,” see

Pl.’s Ex. 2, at 2, and whose alleged potential for destruction led Comnas to

change the office locks and provide new keys to all of Claud’s former

colleagues. See id.

Claud also experienced clinically significant depression and anxiety for

an extended period of time in the wake of her firing. She found it “hard to

sleep,” and “even to this day, [she] check[s] work emails so frequently because

[she is] so afraid” of being fired again and keeps remembering the words of

Comnas’s email: “Shauncy Claud is no longer with the company.” Tr. 171:23–

172:2. Claud stopped biweekly workouts with her trainer and she found

herself in a “different physical state” where she “felt depression.” Tr. 172:3–

6. That persistent condition led Claud to be prescribed sertraline medication,

an antidepressant. See Tr. 173:17–174:16.

These protracted symptoms led Claud to resume treatment with her

former therapist, Donna Fodera—who saw Claud even while she herself was

undergoing cancer treatment, because it was clear that her former patient

was in such distress. Tr. 342:13–343:19 (“She wasn’t sleeping. She was

feeling hopeless. And she was literally begging me to see her again.”).

Fodera’s testimony was significant in terms of proving damages because she

had a clinical baseline from which to evaluate Claud’s mental health before

and after her tenure with BHSH. She powerfully corroborated Claud’s

account that she suffered a significant decline in this regard because of her

termination. Fodera described Claud’s pain, suffering, and anxiety following

termination by, for example, recounting how Claud suffered from an inability

to sleep, extreme anxiety, hopelessness, feelings of dread, self-loathing, and

shame. See Tr. 344:17–18; Tr. 356:6–23. Fodera observed Claud with a

“destroyed” “sense of self.” See Tr. 366:10–12.

In addition to the clinically significant impacts of BHSH’s actions on

Claud’s mental and physical health, there is another effect of her wrongful

termination that is more difficult to quantify but nonetheless significant.

BHSH’s actions deprived Claud of her dream to build a real estate career in

the community where she grew up and where her close-knit extended family

continues to live. After making valiant efforts to restart her once-promising

career in the Hamptons real estate industry for many months without

success, Claud quite reasonably concluded that doing so was futile and

unsustainable. As Claud summed up: “They took everything from me that I

worked for.” Tr. 172:6–7. Claud eventually reapplied to college and was

accepted into a program seven hours away from Southampton, where she

completed her degree in finance. Tr. 171:5–10. Now enrolled in a master’s

degree program, Claud lives in Atlanta, Georgia, nearly 1,000 miles away

from her hometown. See Tr. 45:4; Tr. 197:5–17. Claud was effectively

knocked off the professional real estate ladder she was climbing with great

promise and excitement. And part of what Claud has suffered as a result of

her termination is grief over the lost opportunity to enjoy a highly fulfilling

real estate career in her home community.

BHSH points to Claud’s subsequent academic success as an indication

that she suffered no “impediment to continuing (and improving) her life.”

ECF No. 66, at 27. To this point, BHSH cited her stellar grades in her

subsequent college and master’s degree programs, and her participation in

various clubs and activities, as evidence that she was not nearly as

depressed, anxious, or non-functional as she claims. Id.

I reject this contention for several reasons. First, Claud and her

treating therapist both testified that she experienced a marked decline in

functioning in the immediate wake of her wrongful termination—suffering

from insomnia, a lack of interest in her usual activities, feelings of shame and

worthlessness, and hypervigilance, among other things. That is a significant

and compensable injury, regardless of whether her condition improved in the

years to come. Second, the fact that Claud demonstrated notable resilience

and grit in the face of her wrongful termination by returning to school and

doing well academically does not preclude a finding that she also continued to

suffer significant emotional distress which continues to this day. Many

people who suffer substantial trauma continue to outwardly function well in

society and find meaning and purpose in their lives—even while continuing

to experience emotional distress and related symptoms.22 If anything, the

fact that Claud has had early success in forging an alternate path after her

wrongful termination is yet another indication as to what she might have

achieved in her original chosen field, had BHSH not suddenly cut it short in

retaliation for the exercise of her civil rights.

For each of these reasons, the trial record establishes that she suffered

far more than “garden variety” emotional distress. However, without

minimizing the harms Claud has experienced, courts have continued to

reserve findings of “egregious” emotional distress damages for plaintiffs who

have been subjected to permanent physical or mental changes in lifestyle—

changes that Claud, to her credit, appears to have worked through via

ongoing treatment. See Sooroojballie, 816 F. App’x at 547–48 (collecting

cases). Her specific descriptions and corroborated testimony, however,

22 Research suggests that “people exposed to trauma for various

reasons may be able to function within normal limits” while “suffer[ing] from

significant distress and internal conflict.” See Brett T. Litz, Resilience in the

Aftermath of War Trauma: A Critical Review and Commentary, 4 INTERFACE

FOCUS, no. 5, 2014, at 8, http://dx.doi.org/10.1098/rsfs.2014.0008

[https://perma.cc/F43J-39P4]; see also Kenya Anderson, #MeToo Founder

Tarana Burke on Working Through Trauma to Create Joy, VICE (Sept. 11,

2018), https://www.vice.com/en/article/mbwqxp/metoo-founder-tarana-burke-

on-working-through-trauma-to-create-joy [https://perma.cc/QK5A-J25C]

(interview with award-winning author and activist Tarana Burke, a sexual

assault survivor, discussing strategies for balancing persisting effects of

trauma with countervailing emphasis on “resilience” and “joy”).

distinguish her claims from those courts have deemed “garden variety.”

While “[t]here is no objective way to assign any particular dollar value

to distress,” courts should ensure awards are “fair, reasonable, predictable,

and proportionate.” Stampf v. Long Island R. Co., 761 F.3d 192, 205 (2d Cir.

2014). This means that an award may exceed ranges from prior cases to

reflect the harms a particular plaintiff has experienced.

Although some courts’ awards for significant emotional distress in this

circuit have ranged from $50,000 to $200,000, others have been higher. See,

e.g., Emamian v. Rockefeller Univ., No. 07 CIV. 3919 (DAB), 2018 WL

2849700, at *15–18 (S.D.N.Y. June 8, 2018) (reducing a $2 million jury award

to $200,000 in light of plaintiff’s manifestations of emotional suffering—

including trichotillomania, or a need to pull out her own hair, and

generalized anxiety disorder—and corroborative medical testimony);

Marchisotto v. City of New York, No. 05 CIV. 2699 (RLE), 2007 WL 1098678,

at *3, 11 (S.D.N.Y. Apr. 11, 2007) (finding reasonable a $300,000 award for a

plaintiff whose psychologist corroborated that the plaintiff suffered from

posttraumatic stress disorder, major depressive disorder, and had difficulty

performing sexually), aff’d, 299 F. App’x 79 (2d Cir. 2008); Quinn v. Nassau

Cty. Police Dep’t, 53 F. Supp. 2d 347, 363 (E.D.N.Y. 1999) (declining to find

excessive a $250,000 emotional distress award for a plaintiff who testified—

as corroborated by his social worker—to suffering from years of pervasive and

severe sexual orientation harassment). And an award that directly tracks

the cases cited above would not account for the effects of inflation in

intervening years. Under the Consumer Price Index, for example, the awards

in Emamian ($200,000 in June 2018), Marchisotto ($300,000 in April 2007),

and Quinn ($250,000 in June 1999) had the same buying power as $240,775,

$440,324, and $456,322, respectively, in April 2023.23 See CPI Inflation

Calculator, U.S. Bureau of Labor Statistics,

https://www.bls.gov/data/inflation calculator.htm (last visited June 7, 2023).

23 Permalinks for these amounts, respectively, are available at

https://perma.cc/6URZ-KZVR ($200,000 in June 2018);

https://perma.cc/4Y9B-Z28P ($300,000 in April 2007); and

https://perma.cc/47T8-XEHD ($250,000 in June 1999).

Here, in light of all of the evidence presented at trial, and upon

consideration of both persuasive and controlling authorities in this area of

law, I conclude that Claud is entitled to compensatory damages for

significant emotional distress in the amount of $300,000.

c. Interest

Claud is entitled to both pre-judgment interest on her economic

damages and to post-judgment interest.

Pre-judgment interest. A § 1981 plaintiff is entitled to pre-judgment

interest. Santiago v. Crown Heights Ctr. for Nursing & Rehab., No. 15 CV

4381 (DLI) (CLP), 2017 WL 9482107, at *24–26 (E.D.N.Y. Feb. 24, 2017),

report and recommendation adopted as modified, 2017 WL 4410807 (E.D.N.Y.

Sept. 30, 2017). Indeed, when a court awards back pay, “it is ordinarily an

abuse of discretion not to include pre-judgment interest.” Gierlinger v.

Gleason, 160 F.3d 858, 873 (2d Cir. 1998) (citation omitted). Doing so

prevents a defendant employer from getting an “interest-free loan for as long

as it can delay paying out back wages” and helps to make a plaintiff whole.

Id. at 874. To this end, courts in this circuit have awarded pre-judgment

interest on compensatory damages under § 1981. See, e.g., Santiago, 2017

WL 9482107, at *24–26 (awarding pre-judgment interest in a § 1981 case);

Jowers, 2006 WL 1408671, at *11 (same).

“No federal statute specifies the rate at which pre-judgment interest

should be calculated,” which means that a court has discretion to determine

the applicable rate. Barrella v. Vill. of Freeport, 43 F. Supp. 3d 136, 194

(E.D.N.Y. 2014), aff’d, 814 F.3d 594 (2d Cir. 2016). Courts in this district

“traditionally use the average Treasury bill rate over the time period in

question for back pay compensation.” Joseph, 970 F. Supp. 2d at 151; see also

28 U.S.C. § 1961(a) (specifying the rate to use for post-judgment interest);

Norris v. New York City Coll. of Tech., No. 07-CV-853, 2009 WL 3841970, at

*2 (E.D.N.Y. Nov. 18, 2009) (applying rate from 28 U.S.C. § 1961(a) for pre-

judgment interest).

To calculate pre-judgment interest, courts in this circuit have divided

back pay awards evenly over the relevant time period, applied the average

annual Treasury bill rate of interest from 28 U.S.C. § 1961, and then

compounded interest annually. See, e.g., Luciano v. Olsten Corp., 912 F.

Supp. 663, 677–78 (E.D.N.Y. 1996) (dividing $150,714 back pay award over a

five-year period and then compounding interest annually); Perdue v. City

Univ. of N.Y., 13 F. Supp. 2d 326, 342 & n.9 (E.D.N.Y. 1998) (allocating

$134,829 award proportionally over a twenty-three-month period and

compounding interest annually); Francis v. Ideal Masonry, Inc., No. 16-cv-

2839 (NGG)(PK), 2018 WL 4292171, at *11 (E.D.N.Y. Aug. 3, 2018) (applying

similar methodology), report and recommendation adopted, 2018 WL 4288625

(E.D.N.Y. Sept. 7, 2018); Joseph, 970 F. Supp. 2d at 152 (same).

Some courts have simplified this process by averaging interest rates

over the relevant time period. See, e.g., Santiago, 2017 WL 9482107, at *26

(applying the average interest rate from January 1, 2012, to February 24,

2017, to a back pay award); Mohan v. La Rue Distributors, Inc., No. CV -6-

0621(FB)(RLM), 2008 WL 4822266, at *4–5 (Oct. 27, 2008) (applying average

of four annual average rates of return to back pay award). However, “[g]iven

that the purpose of back pay is to make the plaintiff whole, it can only be

achieved if interest is compounded.” Saulpaugh v. Monroe Cmty. Hosp.,

4 F.3d 134, 145 (2d Cir. 1993). I thus compound interest using the average

weekly interest rates for each year between the date of termination and the

date of judgment.

Here, I divide the $263,516.07 back pay award across the 309.71 weeks

between the date of termination and the date of judgment, which yields a

prorated weekly award amount of $850.84, which I use as the principal for

the interest calculations that follow.

Since BHSH terminated Claud on June 30, 2017, I determined annual

interest rates by averaging the weekly interest rates for June 30 to December

31, 2017 (2.30%), 2018 (2.91%), 2019 (2.15%), 2020 (0.90%), 2021 (1.44%),

2022 (2.96%), and January 1 to June 2, 2023, the most recent date for which

interest rate data was available at the time of judgment (3.60%).24 For 2017,

24 Interest rates were calculated with data from the Federal Reserve.

See Board of Governors of the Federal Reserve System (US), Market Yield on

U.S. Treasury Securities at 10-Year Constant Maturity, Quoted on an

I prorated the principal by multiplying the average weekly award amount of

$850.84 by the numbers of weeks (taken from the number of days divided by

seven) between June 30 and December 21, 2017 (26.29 weeks); between

January 1 to December 31 for 2018 (52.00 weeks), 2019 (52.00 weeks), 2020

(52.14 weeks), 2021 (52.00 weeks), and 2022 (52.00 weeks); and between

January 1 to June 7, 2023 (22.43 weeks). I then compounded interest on the

accumulated principal for those time periods by adding the prorated principal

for a given period to the prior period’s principal plus interest.25 Accordingly,

Claud is awarded $24,380.61 in pre-judgment interest.

Table 1 Pre-Judgment Interest

Period Principal Weeks Avg. Rate Interest

June 30–Dec. 31, 2017 $22,364.83 26.29 2.30% $515.10

2018 $67,123.40 52.00 2.91% $1,953.14

2019 $113,320.01 52.00 2.15% $2,431.47

2020 $160,116.50 52.14 0.90% $1,445.11

2021 $205,805.09 52.00 1.44% $2,956.58

2022 $253,005.14 52.00 2.96% $7,485.28

Jan. 1–June 7, 2023 $279,573.46 22.43 3.60% $10,062.17

TOTAL $24,380.61

Investment Basis [DGS10], retrieved from FRED, Federal Reserve Bank of

St. Louis, https://fred.stlouisfed.org/series/DGS10 [https://perma.cc/89A4-

3P2U] (last visited June 5, 2023).

25 In 2018, for instance, the principal of $67,123.40 comes from adding

the prorated principal for that period ($850.84 multiplied by 52.00, or

$44,243.47) to the principal plus interest for the prior period ($22,364.83 plus

$515.10, or $22,879.93). Multiplying the average weekly interest rate for

that period (2.91%) by the $67,123.40 principal equals interest of $1,953.14.

Post-judgment interest. “Interest shall be allowed on any money

judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961(a).

“The interest is calculated daily and compounded annually” according to the

average one-year constant maturity Treasury yield, as described above. Doe

v. E. Lyme Bd. of Educ., 962 F.3d 649, 662 (2d Cir. 2020) (citing 28 U.S.C.

§ 1961(a)–(b)). The amount upon which the post-judgment interest accrues

“includes compensatory damages, punitive damages, and fee awards.”

Antoine v. Brooklyn Maids 26, Inc., 489 F. Supp. 3d 68, 102 (E.D.N.Y. 2020)

(citation omitted). Indeed, a post-judgment interest award serves to

“compensate the plaintiff for the delay it suffers from the time damages are

reduced to an enforceable judgment to the time the defendant pays the

judgment.” See Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 55 (2d Cir.

1998) (citations omitted). The Clerk of Court is respectfully directed to

calculate post-judgment damages from the date of the entry of judgment.

2. Punitive damages

Punitive damages serve to punish a defendant for its conduct and deter

both the defendant and others from similar future conduct. Vasbinder v.

Scott, 976 F.2d 118, 121 (2d Cir. 1992). Courts have awarded punitive

damages under § 1981 when an “employer has engaged in intentional

discrimination and has done so ‘with malice or with reckless indifference to

the federally protected rights of an aggrieved individual.’” Hill v. Airborne

Freight Corp., 212 F. Supp. 2d 59, 75 (E.D.N.Y. 2002), aff’d, 93 F. App’x 260

(2d Cir. 2004). “[U]nlike Title VII, Section 1981 does not have a statutory cap

that limits punitive damages.” Kauffman v. Maxim Healthcare Servs., Inc.,

509 F. Supp. 2d 210, 220 (E.D.N.Y. 2007) (citations omitted).

“A plaintiff may establish the requisite state of mind for an award of

punitive damages with evidence (1) that the defendant discriminated in the

face of a perceived risk that its actions violated federal law, or (2) of egregious

or outrageous acts that may serve as evidence supporting an inference of the

requisite evil motive.” Saleh v. Pretty Girl, Inc., No. 09-CV-1769 (RER), 2022

WL 4078150, at *25 (E.D.N.Y. Sept. 6, 2022) (quoting United States v. Space

Hunters, Inc., 429 F.3d 416, 427 (2d Cir. 2005)). To ensure that a punitive

damages award does not violate due process, a court looks to (1) “the degree

of reprehensibility of the defendant’s conduct,” followed by (2) “the ratio [of

punitive damages] to the actual harm inflicted on the plaintiff”; and (3) the

comparison between the punitive damages award and the “civil or criminal

penalties that could be imposed for comparable misconduct.” BMW of N. Am.

Inc. v. Gore, 517 U.S. 559, 575, 580, 583 (1996).

Claud argues that a discretionary award of punitive damages is

warranted here because, among other reasons, she was subject to

reprehensible conduct when BHSH fired her just two weeks after

complaining of discrimination, and because lacked any sort of anti-

discrimination policies to provide guidance and protection to agents in her

position. ECF No. 65, at 14.

BHSH’s conduct was indeed reprehensible. As noted above, its senior

executives seized on a pretextual reason for firing Claud, did so in a callous

and unceremonious fashion, and repeatedly gave what I found to be false

testimony about their own actions and the reasons for Claud’s termination.

In addition, I agree with Claud that punitive damages are in part justified for

purposes of deterrence, both as to BHSH and other firms in the real estate

industry. Among other things, an award of punitive damages may serve to

deter BHSH and comparable firms from retaliating against employees who,

like Claud, have the courage to raise good-faith claims of racial

discrimination with management. Such an award may also incentivize those

firms to adopt clear policies and practices that inform agents and other

employees of their legal rights to be free from discrimination, and how they

may exercise those rights without fear of unlawful retaliation.

I find that an award of $200,000 in punitive damages is appropriate

here. Such an award corresponds to the degree of reprehensibility in BHSH’s

conduct, is not excessive at a ratio of compensatory damages to punitive

damages of nearly 3 to 1 and may serve to deter future misconduct.

CONCLUSION

In June 2017, Brown Harris Stevens of the Hamptons suddenly and

callously cut short the highly promising career of a young real estate agent

who was, at the time, the only Black person in a comparable role at the entire

firm. BHSH gave Shauncy Claud no explanation for her sudden termination,

and its actions deprived her of any viable path to pursue her dream of a

career as a real estate agent in the community where she was born and

raised.

BHSH took this action in direct retaliation against Claud for making a

good-faith request for assistance just two weeks earlier to the firm’s senior

executive manager, in which Claud reported what she believed was a pattern

of unfair and disparate treatment based on race by her direct supervisor over

many months. Claud took this action only after making repeated efforts to

address the situation informally with her supervisor and others. She left the

meeting believing that these issues would be addressed, and she might

finally get the same mentorship, supervision, and level playing field at work

as other agents. She was wrong. And when Claud filed suit for wrongful

termination, BHSH gave non-credible and inconsistent explanations for its

actions, all of which established that its proffered reason for firing Claud two

weeks after her discrimination complaint was a mere pretext.

Such conduct is expressly forbidden by § 1981. Six years later, Claud

cannot get her once-promising real estate career back. But she is entitled to

recover damages to compensate her for the substantial economic and non-

economic harm that BHSH caused. In addition, BHSH’s conduct was

sufficiently reprehensible and in need of deterrence that an additional award

of punitive damages is appropriate. In total, I find that Claud is entitled to

an award of damages in the amount of $787,896.68, with post-judgment

interest.

Table 2 Summary of Damages

Category Amount

Compensatory Damages $587,896.68

Economic damages: Back pay $263,516.07

Non-economic (emotional distress) damages $300,000.00

Pre-judgment interest $24,380.61

Punitive damages $200,000.00

Total $787,896.68

The Clerk of Court is respectfully directed to enter judgment against

BHSH in these amounts and to calculate post-judgment interest.

The parties shall confer as to a briefing schedule for any application for

attorney’s fees that Plaintiff may seek.

SO ORDERED.

/s/ NRM

NINA R. MORRISON

United States District Judge

Dated: June 7, 2023

Brooklyn, New York