Ingram v. MacDonald et al

Filing 111

MEMORANDUM AND ORDER, For the reasons set forth herein, deft Just Energy's 88 Motion for Summary Judgment dismissing this case is granted. The Clerk of Court is directed to enter judgment in accordance with the Memorandum and Order and to close this case. (Terminating 104 Motion for More Definite Statement; Terminating 106 Motion for More Definite Statement) Ordered by Judge Sandra L. Townes on 9/17/2012. c/m Fwd. for Judgment. (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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1
INGRID COTTERELL INGRAM,

Plaintiff,
-against10-CV-3859 (SLT) (LB)
REBECCA MACDONALD, eta/.,
Defendants.

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TOWNES, United States District Judge:
Plaintiff Ingrid Cottereli-Ingram- a black woman and a native of the nation of Jamaicabrings this employment discrimination action against defendant Just Energy ("Defendant" or
"Just Energy"), a Canadian-based energy supply company (or "ESCO") for which plaintiff once
worked. Defendant now moves for summary judgment, arguing that plaintiff cannot make out a

prima facie case of discrimination; that Defendant has presented a legitimate, non-discriminatory
reason for terminating plaintiff and that plaintiff cannot demonstrate that Defendant's reasons are
a prete)[t for discrimination. For the reasons set forth below, Defendant's motion is granted.
BACKGROUND

Just Energy's Business
Defendant is an independent energy supplier, providing natural gas and electricity to both
residential and commercial customers (Defendant's Statement of Undisputed Material Facts
Pursuant to Local Rule 56.1 ["Def. 56.1 "] at '1(4; Plaintiffs Supplemental Counterstatement to
Defendant's Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 ["Pl. Supp.
56.1 "] at '1(4 ). Defendant sells its products and services door-to-door through sales

'Although plaintiff signed the complaint as Ingrid Cotterell-Ingram, the caption of the
complaint referred to plaintiff as Ingrid Cotterell Ingram. Accordingly, in this case and a related
action- Johnson v. MacDonald, E.D.N. Y. Docket No. 10-CV -3699- plaintiff is referred to as
~~'Ingram" rather than "Cottereli-Ingram."

representatives, which it calls "Independent Contractors" or "ICs" (Def. 56.1 at ~6; Pl. Supp.
56.1 at ~6). Defendant's sales representatives are paid a commission for each contract they
procure on Defendant's behalf (Pl. Supp. 56.1 at ~15). Plaintiff alleges that she was told she
would also receive residual payments on the customers she "registered" (Complaint at 3).
It is undisputed that Defendant occasionally offers trips to vacation destinations around

the world as a further sales incentive (Def. 56.1 at ~53; Teixeira at ~8). To qualify for one of
these trips, a sales representative must, through his or her sales, earn a certain number of "points"
during a specific period (id.).
Defendant claims, and plaintiff does not deny, that Defendant's business is regulated by
the State of New York (Def. 56.1 at ~11; Teixiera Aff. at ~6). As explained in a December 13,
2010, decision issued by Administrative Law Judge Henry A. Sullivan of the Unemployment
Insurance Appeals Board (attached as Ex. 31 to the Declaration of Rebecca Tingey in Support of
Defendant's Motion for Summary Judgment [the "Tingey Declaration"]):
[T]he Uniform Business Practices regulations ("UBP") of the New
York Public Service Commission ("PSC") ... set[ s] forth required
business procedures for both ESCO's [sic] and their marketing
representatives. More specifically, the regulations require ESCO's
[sic] to ensure that their training of marketing representatives
includes knowledge of: the UBP; the ESCO's products, services,
rate[s] and fees; the customers' right to cancel; the Home Energy
Fair Practices Act that pertain[s] to residential customers; and the
ability to provide the customer with a toll-free telephone number
from which the customer may obtain information about the
ECSO's mechanisms for handling billing questions, disputes and
complaints. The UBP also prescribe various provisions that
ESCO's [sic] must include in their sales agreements with
customers.

2

/d. at 3 (bracketed material added). Defendant can be investigated and subjected to disciplinary
procedures, fines, and litigation if the marketing activity of one of its sales representatives does
not comply with applicable laws and regulations (Def. 56.1 at ~12; see Pl. Supp. 56.1 at ~12).

2

Defendant operates through "regional offices," each of which is headed by a regional
distributor or manager (Def. 56.1 at ~7; Teixeira Aff. at ~4). To ensure that its sales
representatives have the most current marketing materials and information, a sales representative
must visit his or her regional office on a regular basis (Def. 56.1 at ~II; see Pl. Supp. 56.1 at
~11). 3

The regional distributor is responsible for the marketing behavior of the sales

representatives assigned to his or her office (Def. 56.1 at ~8; Pl. Supp. 56.1 at ~8). Accordingly,
each sales representative markets from one regional office at a time (Def. 56.1 at ~9; Pl. Supp.
56.1 at ~9). If a sales representative wants to market from a different office, that transfer must be
approved by the "head office" or "corporate office" (De f. 56.1 at ~I 0; Pl. Supp. 56.1 at ~I 0).

'Although plaintiff does not expressly admit that Defendant is subject to sanctions for the
violation of applicable laws and regulations, plaintiff makes no effort to controvert this claim.
Rather, plaintiff notes only that there is no evidence that Defendant suffered any consequences as
a result of plaintiffs conduct. Pl. Supp. 56.1 at ~12. Accordingly, Defendant's claim that Just
Energy can be "investigated and subject to disciplinary procedures, fines and litigation" if the
marketing activity of one of its sales representatives does not comply with applicable laws and
regulations is deemed admitted. See Local Rule 56.l(c) ofthe Local Rules ofthe United States
District Courts for the Southern and Eastern Districts of New York (uncontroverted allegations in
a statement of material facts pursuant to Local Rule 56.1 are deemed admitted).

'Plaintiff acknowledges, but does not specifically controvert, Defendant's claim that sales
representatives must visit their regional offices on a regular basis in order to obtain the updated
materials and information that they are required to have under applicable laws and regulations.
Pl. Supp. 56.1 at ~II. Accordingly, this claim is deemed admitted. See Local Rule 56.l(c).
3

Plaintiff's History at Just Energy
Except where otherwise indicated, the following facts are either undisputed, based on
documentary evidence, or drawn from plaintiff's submissions or her June 29, 2011, deposition.
Although all of plaintiff's submissions are unsworn, this Court assumes, for purposes of this
Memorandum and Order, that the prose plaintiff would be prepared to swear to the truth of the
allegations contained therein.
On or about October 19,2007, plaintiff started working for Defendant -then known as
either US Energy Savings Corp. or Energy Savings Marketing Corp. -as a sales representative in
its office in Kew Gardens, Queens (Def. 56.1 at ~~14, 19; Plaintiffs Counterstatement in
Opposition to Defendants' Statement of Undisputed Facts Pursuant to Local Rule 56.1 ["Pl.
56.1 "] at 1). There, plaintiff was trained by Norman Johnson, a Jamaican man who was then an
Assistant Crew Coordinator (Deposition of Ingrid Cotterell Ingram ["Pl. EBT"] at 76).
According to plaintiff, Johnson "care[d] about everyone he train[ed]" (id.), and "looked out for
plaintiff[']s best interest[s]" (Plaintiffs Cross Motion in Opposition to Defendant's Motion for
Summary Judgment ["Plaintiffs Cross Motion"] at 1). For example, Johnson "would make sure
he knew where plaintiff [was] at all times and who plaintiff was last talking with" (id.).
Although plaintiff alleges that Johnson worked this way "with every individual he took into the
field" (id.), she also concedes that she and Johnson "became friends" and that they marketed
together throughout her tenure at Just Energy (Pl. EBT at 76, 144).
At all time relevant to this action, the regional distributor or manager of the Kew Gardens
Office was a man named Chad Langford. According to plaintiff, Langford was "brutal" (id. at
156) and "mean to the entire office" in that he demanded that the sales representatives work
seven days a week and generate 50 or more "deals" a week (Plaintiff's Cross Motion at 8).

4

However, plaintiff testified at her deposition that Langford was especially mean to her, cursing at
her and calling or texting her in the middle of the day to threaten that she would be terminated
unless she made ten deals that day (Pl. EBT at 155-56).
Sometime in 2008, plaintiff and Johnson transferred from the Kew Gardens Office to
Defendant's Bronx office (Def. 56.1 at ~22; Pl. Supp. 56.1 at ~20). Although the parties'
submissions do not explain why plaintiff and Johnson left, Defendant implies- and plaintiff does
not deny- that the transfer was voluntary (Def. 56.1 at ~22). Later in 2008, however, the Bronx
office was closed (Plaintiff's Cross Motion at 1). According to plaintiff, Just Energy's CEO gave
the Bronx sales representatives the option of going to the Kew Gardens or Brooklyn offices (id.;
Pl. EBT at 124). Plaintiff and Johnson elected to go the Brooklyn Office (id.).
Both plaintiff and Johnson were working in the Brooklyn Office when Langford asked
them to return to the Kew Gardens Office (Pl. Supp. 56.1 at ~21; Def. 56.1 at ~24). Plaintiff
implies that Langford forced them to meet with him by arranging to have their paychecks sent to
the Kew Gardens Office (Plaintiff's Cross Motion at 1-2). The first time plaintiff and Johnson
went to Kew Gardens to retrieve their checks, Langford approached them and told them that he
needed their help to win the "Office of the Year" award (id.). Plaintiff and Johnson told
Langford they would "think about it" (id. at 2). However, their checks continued to be sent to the
Kew Gardens Office (id.). When they went to retrieve their checks for a second time, Langford
again asked them to return (id. ). At some point, Langford offered them incentives to return,
telling them that they would not have to attend morning meetings and that Johnson would receive
"his own override" (id. ).
In mid-2008, plaintiff and Johnson finally agreed to return (id.; Pl. Supp. 56.1 at ~24;
Def. 56.1 at ~24). Plaintiff's Cross Motion states that this decision was "based on the fact that

5

[plaintiff and Johnson] had come to the conclusion that Cyrus[,] the Brooklyn Office regional
manager[,] was no better than ... Langford" (Plaintiffs Cross Motion at 2) (bracketed material
added). However, Plaintiffs Cross Motion also suggests that they decided to return after
plaintiff was terminated, stating:
One day plaintiff and Mr. Johnson went into the field and plaintiff
wrote no deals[.] [T]he following day Cyrus told plaintiff to give
him her badge and get out of his office so we went back to Chad
(id).
According to plaintiff, Langford "got a little happy" when plaintiff and Johnson agreed to return
(id.).

Following plaintiffs return, the Kew Gardens Office won the "Office of the Year" award
for 2008 (Teixeira at ~14). Plaintiff played a part in that success, producing enough deals to
qualify for a trip to Australia that was scheduled to begin March 5, 2009 (Pl. Supp. 56.1 at ~25;
Def. 56.1 at ~56). Moreover, according to an "IC Summary" produced by Defendant, plaintiff
had only three customer complaints lodged against her in all of 2008 (Tingey Declaration, Ex.
23).
Nonetheless, Langford was "really mean" to plaintiff(Pl. EBT at 164). In contrast,
Langford was not mean to Johnson (id. at 182), and did not want Johnson to work with plaintiff
(id. at 82). At her deposition, plaintiff concluded that Langford did not like her and blamed her

for Johnson's defection to the Bronx Office (id. at 155, 164, 182).
The parties agree that plaintiffleft the Kew Garden Office yet again in January 2009 (De£
56.1 at ~29; Pl. Supp. 56.1 at ~26), but disagree as to why she left. Defendant asserts that
plaintiff "chose to leave" Kew Gardens in order to market from the Wall Street Office (Def. 56.1
at ~29). However, the only evidence cited by Defendant in support of this proposition is a

6

portion of plaintiff's own deposition, which does not substantiate Defendant's claim (id., citing
Pl. EBT at 124-25).4
Plaintiff, in contrast, claims that she only left the Kew Gardens Office because Langford
fired her (Plaintiff's Cross Motion at 2; Pl. Supp. 56.1 at ~26). Indeed, Plaintiff's Cross Motion
describes in detail the circumstances that led to her termination. According to plaintiff, one
Sunday in 2009, Langford instructed her "not to go with Mr. Johnson," but to go into the field
with another sales representative named Spencer Shield (Plaintiff's Cross Motion at 2). Plaintiff
initially obeyed his directive (id.). However, when Shield began smoking marijuana, she and
another sales representative- Khani Sanders -left Shield (id.). Sanders and plaintiff apparently
worked together for the remainder of the day, but without much success. Sanders secured one
contract, but plaintiff closed no deals (id., Pl. EBT at 166).

4

Prior to the cited portion of plaintiff's deposition, Defendant's counsel attempted to
establish the "progression" of offices at which plaintiff worked and the approximate dates of
plaintiff's move from office to office (Pl. EBT at 123-24). Defendant's counsel established that
plaintiff last worked at the Wall Street Office, then attempted to establish the approximate date
of the move as follows:
Q: So going back to Bates number 89, we just discussed that
starting around January of 2009 you started marketing under the
Wall Street badge number, which is 913879, correct?
A: Correct.
Q: And does that correspond with your memory that you
transferred to the Wall Street office around January 2009?
A: I think so. I'm not sure (Pl. EBT at 124-25).
Although the focus of the questioning was the timing ofthe move, rather than the circumstances
that prompted the move, Defendant reads this exchange as supporting the proposition that
plaintiff's move was voluntary.

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The next day, Langford called plaintiff and Sanders into his office, where he asked
plaintiff why she had written no business and why she had left Shield (Plaintiffs Cross Motion at
2). In response to the latter question, plaintiff told Langford that Shield was smoking marijuana
(id.). Langford asked Sanders to corroborate plaintiffs claim, but Sanders "became mute" (id.).

Langford then fired plaintiff and suspended Sanders (id. ). The next day, Langford apprised
Johnson of this development by placing a "yellow sticky note" on his check which read, "I got rid
oflngrid for you" (id.).
On January 15, 2009, plaintiff signed a new Independent Contractor Agreement ("ICA")
with the Wall Street Office, which is attached to the Tingey Declaration as Exhibit 21. That
agreement included a rider, entitled a "New York AOD Obligations Certification." This
document alluded to an agreement which Defendant had entered into "in order to resolve the
concerns of the New York Attorney General in connection with allegations they received about
some contractors' conduct." Although the rider did not attach a copy of that agreement- called
an "Assurance of Discontinuance" or "AOD"- it informed plaintiff:
You WILL have your agreement with Energy Saving Marketing
Corp. (ESMC) terminated if, on more than two occasions in any 12
month period, it is determined by ESMC that you: did not identify
yourself fully and properly, including that you do not represent the
utility; or promised savings; or failed to state the term and price of
the agreement (Tingey Declaration, Ex. 21) (emphasis in original).
Plaintiff signed the rider (id.).
On January 15, 2009- the very day on which plaintiff signed the ICA with the Wall
Street Office - plaintiff electronically registered for the Australian trip on a website created for
that purpose by Pareto, a marketing company in Toronto, Ontario, that organizes Defendant's
sales incentive trips (Pl. EBT at 30; Tingey Declaration, Ex. 22). Plaintiff had "trouble with the

8

computer," and enlisted the help of a secretary in completing the registration (Pl. EBT at 30).
However, plaintiff remained "in front of the computer screen" throughout the registration process
and was, therefore, in position to read any information supplied by the website (id. at 30-31 ).
The online registration form requested, inter alia, plaintiffs agent number and regional
office and her preferred roommate (id. at 31 ). Although plaintiff was working from the Wall
Street Office by that time, she listed Kew Gardens as her office and provided the agent number
she had used at Kew Gardens (id.). Plaintiff also named Johnson as her preferred roommate (id.
at 75). However, plaintiff testified at her deposition that she did so only to upset Langford, in
order to retaliate for her firing (id. at 75, 81-82).
According to Megan Taylor, a Senior Program Manager in the Events Division of Pareto,
the website advised registrants of the paperwork necessary to enter Australia as follows:
Entry Requirements Australia:
Canadian and American citizens require a valid passport and visa
to enter Australia. Passports must be valid six (6) months beyond
the return date of travel. Please scan your passport and email to
[e-mail] to obtain a visa. Your passport must be sent no
later than January 31" to ensure enough time to process your visa.
If you do not hold a Canadian or American passport please contact
the Fiji and Australian Consulate near you to find out what you
require for travel.
(Affidavit of Megan Taylor, dated Dec. 15, 2011 ["Taylor Aff."], at ~7). Plaintiff, however,
never saw this notice (Pl. EBT at 43). The secretary who assisted plaintiff in completing the
registration may have seen it, for she asked plaintiff to bring in her passport (Pl. EBT at 33).
When plaintiff brought her a copy of her Jamaican passport and green card, the secretary copied
the documents and faxed the copies to the head office (id.).

9

In response to the secretary's transmission, someone named "Lisa" received a message
advising that, since plaintiff held a Jamaican passport, she would need to apply for a visa herself
(id. at 43). Plaintiff, however, never received the message and remained unaware that she was

responsible for obtaining her own visa (id.). Indeed, based on Johnson's experiences with a trip
to Brazil in 2007, plaintiff believed that Just Energy would obtain the visa for her (id. at 42, 66).
Accordingly, plaintiff never contacted the Australian consulate, researched Australia's visa
requirements, or made any attempt to obtain a visa (id. at 32-33).
At some juncture, plaintiff made telephone inquiries about her itinerary, which had not
arrived at the Wall Street Office (id. at 40). Taylor told her that it had been sent to the Kew
Gardens Office (Plaintiffs Cross Motion at 5). However, when plaintiff called Kew Gardens,
Langford denied having her itinerary (id. ).
Plaintiff did not actually obtain the itinerary until sometime after February 25, 2009 (Pl.
EBT at 67). At her deposition, plaintiff described in detail the circumstances under which she
obtained a copy of her itinerary. According to plaintiff, Langford telephoned Johnson on
February 25, 2009, to say that he had Johnson's itinerary (id.). Langford did not tell Johnson
whether he also had plaintiffs itinerary, but Johnson told plaintiff to accompany him to the Kew
Gardens Office nonetheless (id.). However, the two did not actually go to the Kew Gardens
Office until February 27, 2009- two days after Langford's call and approximately one week
before the trip was to begin (id. at 261 ).
During the February 27 visit, plaintiff and Johnson both received copies of their
itineraries from Liz Beth Delgado, a secretary at the Kew Gardens Office (id. at 67 -68). At her
deposition, plaintiff testified that Delgado told them that the itineraries had arrived "a long time"
before and that "everyone had already received theirs" (id. at 73). Delgado also implied that
10

Langford had deliberately withheld their itineraries, saying she "didn't know why Chad did this"
(id. at 67).

Delgado telephoned the Australian consulate in an effort to assist plaintiff and Johnson in
obtaining "rush" visas, but had no success (id. at 67). However, plaintiff and Johnson did not
visit the Australian consulate themselves until March 2, 2009 (id. at 261 ). The consulate
informed them that it would take 15 days to receive a visa (id. at 79). Accordingly, plaintiff and
Johnson were unable to go on the trip.
In April 2009, Johnson started working for the Wall Street Office in Manhattan, where he
was reunited with plaintiff. According to Shanda Walker, one of their co-workers, the regional
distributor who was then in charge of the Wall Street Office- Ali Mamune- conducted meetings
only once a week (Affidavit ofShanda Walker ["Walker Aff."] at 1). Accordingly, the "outside
workers" visited the office only on Mondays to attend the meeting and to turn in their contracts
(id.).

In November 2009, Mamune was replaced as regional distributor by a man named Ali
Zamany (id.; Affidavit of Ali Zamany, dated Dec. 22, 2011 ["Zamany Aff."] at ~2). According
to both plaintiff and Walker, Mamune convened a conference to introduce Zamany to the staff
(Plaintiff's Cross Motion at 9-10; Walker Aff. at 1). Zamany told everyone to continue doing
what they were doing (Walker Aff. at I). Plaintiff and Johnson apparently interpreted this
statement to mean that they could continue visiting the office only once a week.
According to the "IC Summary" produced by Defendant, plaintiff was the subject to two
customer complaints in September 2010. In the first, the customer complained that she had not
signed the agreement which bore her name (Tingey Declaration, Ex. 23 ). In the second, the
customer alleged that she had been promised savings (id.). In both cases, Just Energy cancelled
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the customer's contract (id.). Plaintiff does not deny that these complaints were made but argues
that they were meritless.
In February 2010, yet another customer complained about plaintiff, alleging that the she
had not authorized a change in her electricity account (id.). On March 16, 2010, Wayne
Morgan, a Team Leader in Defendant's Corporate and Consumer Relations Department, sent
Zamany an e-mail directing him to have plaintiff and Johnson come into the office to discuss
their "compliance ratios" (Tingey Declaration, Ex. 24; Zamany Aff. at '1[3). On March 22,2010,
Zamany had a conference call regarding plaintiff and Johnson with Defendant's Compliance
manager, Vanessa Anesetti, and Humera Siddiqui, Defendant's Regional Sales Manager for
Eastern United States Sales (Tingey Declaration, Ex. 25).
On the morning of March 22,2010, Anesetti sent Morgan an e-mail describing the
substance of the conversation she and Siddiqui had just had with Zamany. According to
Anesetti, Zamany claimed that plaintiff and Johnson did not show up to sales meetings and were
"affecting his office demeanor and stats" (id.). Noting that he had not trained plaintiff and
Johnson, but was "responsible for any RD [regional distributor] consequence associated to their
complaints," Zamany complained that it was "unfair that he ... inherited all these issues and that
his office [numbers]look worse than they really are ... "(id.).
Zamany and Siddiqui wanted the Corporate and Consumer Relations Department to
"complete a call with [plaintiff and Johnson] and put them on their final warning" (id.). Anesetti,
however, reviewed their compliance records and found that their "allegation ratios" did not
warrant such an action (id.). Instead, she recommended having a call with plaintiff and Johnson
"to discuss the importance of them showing up to their meetings, taking direction from [Zamany]
and going through [Zamany's] reorientation" (id.).
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The parties disagree as to whether such a call took place. Zamany states that he, Morgan
and Siddiqui had a conference call with plaintiff and Johnson on March 29, 2010, during which
he advised the two sales representatives that "due to their high allegation ratios, if they wanted to
continue to market and receive office support from the Wall Street office, they would have to
come by the office regularly to receive up to date information regarding Just Energy products and
compliance with applicable legal and/or regulatory requirements" (Zamany Aff. at ~5). Plaintiff
denies that Morgan or Siddiqui spoke to her on March 29,2010 (Pl. Supp. 56.1 at ~28). Rather,
plaintiff recalls that on March 29, 20 I 0, after Zamany finished talking on the telephone, "he
turned to plaintiff and Mr. Johnson and said if you guys want to continue working in this office
you have to start coming in five days per week" (Plaintiffs Cross Motion at 6; PI. Supp. 56.1 at
~29).

According to the IC Summary, plaintiff was the subject of two more customer complaints
in April and May 2010. On April 24,2010, a customer complained that plaintiff had promised
that her bill would be lower if she switched to Just Energy (Tingey Declaration, Ex. 23). On May
26, 20 I 0, a customer asked to cancel a contract on the ground that the contract listed an incorrect
account number and address (id.). Plaintiff does not deny that these complaint were made, but
explains why each complaint was without merit (Plaintiffs Cross Motion at 9).
In mid-201 0, workers in the Wall Street Office were discovered to be engaged in
fraudulent practices (id. at 4 ). According to plaintiff, Zamany stopped conducting morning
meetings and Adler Porter, plaintiffs crew coordinator, informed plaintiff that there would be no
more meetings until further notice (Pl. 56.1 at I). Thereafter, plaintiff started visiting the office
only on Mondays (id.).

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In July 2008, the Wall Street Office closed. According to Zamany, he announced the
closure on July 8, 2010, and told the sales representatives to report to the Kew Gardens Office
inunediately (Zamany Aff. at ~7). However, since July 8 was a Thursday, plaintiff never
received this information from Zamany (Pl. Supp. 56.1 at ~30). Rather, she learned of the
closure sometime later, after Johnson received a call from a co-worker who told him to report to
Kew Gardens (Pl. EBT at 100).
It is unclear exactly when plaintiff and Johnson reported to the Kew Gardens Office. At

her deposition, plaintiff could not recall the exact date on which Johnson received the call, but
testified that she and Johnson went to the Kew Gardens Office a week or two after receiving this
call (id.). However, on an Errata Sheet prepared approximately two months after her deposition,
plaintiff stated that she and Johnson went to Kew Gardens the same day that Johnson received
the call (id. at 261 ). In her original Rule 56.1 statement, plaintiff implied that she had testified at
her deposition that she went to Kew Gardens one week after the Wall Street Office closed, but
characterized this testimony as inaccurate (Pl. 56.1 at 2). Johnson, in contrast, specifically
recalled that the co-worker called on July 13, 2010, and that he and plaintiff went to the Kew
Gardens Office later that same day (Deposition of Norman Johnson ["Johnson EBT"] at 100). 5
When plaintiff and Johnson arrived at the Kew Gardens Office, Langford refused to
admit them (Complaint at 3). Thereafter, plaintiff received a call from Siddiqui and Morgan,
who allegedly told plaintiff that there was no room in the Kew Gardens Office and that they had
no choice but to terminate her (id.). Although plaintiff's complaint alleges that this conversation
took place on July 19, 2010 (id.), Defendant has produced an e-mail dated July 20,2010, in

5

The transcript of Johnson's June 16,2011, deposition is attached to the Tingey
Declaration as Exhibit I.
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which Siddiqui informed Morgan of her decision not to permit plaintiff and Johnson to market on
their own (Tingey Declaration, Ex. 26). That e-mail states:
Since the closure of the Wall Street office, Ingrid Coterell [sic]
Ingram ... & Norman Johnson ... wanted to continue to market
on their own[. H]owever Sales feels they would potentially pose a
risk to our business without the leadership and guidance of a
Regional and the benefits of visiting a Regional office on a regular
basis. Please be advised that Sales has decided to terminate the IC
agreements for [plaintiff and Johnson] effective immediately (id.).
Defendant has also produced a letter dated July 21, 2010, from James Herod, Defendant's Senior
Vice President of Sales and Marketing, which informed plaintiff that her Independent Contractor
Agreement had been terminated effective July 19, 2010, "as a result of [plaintiffs] breach
thereof' (Tingey Declaration, Ex. 27).

The Instant Action
On August 18, 2010, plaintiff, proceeding prose, commenced this action against
Defendant and eight individuals employed at Just Energy's Canadian headquarters, including
Siddiqui, Morgan, and Herod. Plaintiff did not mention her race, age, or national origin, but
alleged that this Court had jurisdiction under 28 U.S.C. §1331, that the defendants had
discriminated against her, and that she had contacted the Equal Employment Opportunity
Commission ("EEOC") in Manhattan (Complaint at 2-4). Plaintiff did not attach a right-to-sue
letter, alleging instead that the EEOC had told her that "there was no jurisdiction" (id. at 2).
Although Langford was not among the defendants named in the caption, Langford was
mentioned repeatedly in the complaint. The pleading noted, inter alia, that Langford demanded
that all sales representatives work seven days a week and turn in 50 or more deals per week, and
threatened to terminate those who failed to comply with these demands (id. at 3). In addition, the
complaint alleged that Langford had asked plaintiff to return to his office to help him win "Office

15

of the Year," but reverted to "his old ways" of cursing at plaintiff and "telling her to get the fuck
out of his office" once he won the award (id.). However, the complaint did not allege that
Langford had fired plaintiff, stating that she "sought a transfer to the Wall Street Office" (id. ).
The only termination alleged in the complaint was the July 20 I 0 termination. The
complaint alleged that "most" of the sales representatives from the Wall Street Office were
accepted by Langford, but that plaintiff and Johnson were not (id.). The pleading also implied
that Morgan and Siddiqui had lied about the reason for terminating plaintiff, first telling her that
there was no room at the Kew Gardens Office and then sending her a letter alleging that she was
being terminated for breach of contract (id. at 3-4). In addition, the complaint suggested that
Defendant had wrongfully withheld plaintiffs residual payments, specifically alleging that
Siddiqui had rebuffed plaintiffs request for those payments during their July 19,2010,
conversation by telling plaintiff that she did not "have shit to get" (id. at 3).
On October II, 2010, the defendants moved to dismiss the complaint pursuant to Rules
12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. Although all nine defendants
were represented by the same attorneys, Defendant and the eight individual defendants filed
separate memoranda of law in support of the motion. Defendant argued that the complaint failed
to satisfy the notice pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure
and that, if plaintiff was attempting to assert a claim under the federal equal employment
opportunity laws, the claim was barred for failure to exhaust administrative remedies. The
individual defendants not only incorporated these arguments by reference, but also argued that
this Court lacked personal jurisdiction over them and that individuals cannot be liable under Title
VII of the Civil Rights Act of 1964, 42 U.S. C. §2000e, et seq. ("Title VII") and other federal
equal employment opportunity laws.

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On October 26,2010, along with her response to defendants' motion, plaintiff filed a
three-page document entitled, "To Amend Complaint in Order to Add Chad Langford as
Defendant" (see Document 45). This document detailed the inhumane manner in which
Langford treated the sales representatives in his office and alleged, for the first time, that
Langford had fired plaintiff. Although the document made no reference to plaintiff's gender,
race, color, or national origin and implied that Langford treated all sales assistants badly, it
asserted that the "question presented" by this case was "Whether or not defendants [sic)
discrimination is based on gender, race[,] color or National Origin" and cited to Title VII, the
New York Human Rights Law, and the Equal Protection Clause of the Fourteenth Amendment of
the United States Constitution (id. at 3).
On November 16, 20 I 0 -less than two weeks after defendants filed their replies in
support of the motion to dismiss- plaintiff filed a document entitled "Leave to Amend Pleading"
(the "Proposed Amendment"). That document specifically alleged that plaintiff was a "36 Year
Old Black Female who is a Native of Jamaica," and asserted "that Just Energy ... Discriminated
Against [plaintiff] on the basic [sic] Of National Origin and Race" (id. at 1). In addition, the
Proposed Amendment clarified that plaintiff's allegations of discrimination related to three
incidents: plaintiffs termination by Langford, Langford's subsequent actions relating to her
itinerary for the trip to Australia, and plaintiffs termination in July 2010.
With respect to the first of these incidents, the Proposed Amendment only briefly
described how Langford had called her and Sanders into his office to demand an explanation for
their lack of production (Proposed Amendment at 2). It omitted any mention of plaintiffs
decision not to market with Shield, as Langford had directed. Rather, the document implied

17

discrimination by noting that plaintiff had been terminated, while Sanders had only been
suspended (id. ).
With respect to the second incident, the Proposed Amendment asserted that Langford
deliberately withheld her itinerary, knowing that she would need to apply for a visa at least
fifteen days before departure in order to make the trip to Australia. The document alleged that
Langford received all of the itineraries from the head office at the same time, but distributed
them to other sales representatives "ahead of [the] time" he finally gave plaintiff her itinerary
(id. at 3). The Proposed Amendment did not specifically allege that Langford was motivated by

discriminatory animus, but noted that Langford "did the same thing to Norman Johnson," who
was also Jamaican (id.).
With respect to the third incident, the Proposed Amendment stated that plaintiff "was
terminated in a discriminatory manner" (id. at 2). The document alleged that plaintiff "received
unequal treatment" because other workers from the Wall Street Office were admitted to Kew
Gardens while plaintiff was not (id.). Specifically, the Proposed Amendment alleged that none
of the workers from the Wall Street Office who were admitted to the Kew Gardens Office were
Jamaican, and that plaintiff and Johnson- both of whom were Jamaicans- were not admitted
(id.). In addition, the Proposed Amendment alleged that "other workers were allow[ ed] to work

in the absent [sic] of an Office base" and that Just Energy had never terminated a worker who
produced as much as plaintiff absent "some kind of Fraudulent Business Transaction" (id.).
The Proposed Amendment also alleged facts suggesting that plaintiff was an employee,
rather than an independent contractor, and was made to work seven days a week. However, the
Proposed Amendment made no reference to the Fair Labor Standards Act or related state laws.

18

In addition, the Proposed Amendment contained no allegations relating to Defendant's alleged
failure to make residual payments.
On November 18, 2010, Judge Weinstein- the judge who was then presiding over this
case- held oral argument on the motion to dismiss and the motions to amend. Judge Weinstein
orally granted that portion of the defendants' motion which sought to dismiss the claims against
the individual defendants for lack of personal jurisdiction (Transcript of the Nov. 18,2010
Proceedings [Document 57] at 3). However, Judge Weinstein declined to dismiss the claims
against Just Energy on the pleadings, telling the defendants' counsel to "[m]ake a motion for
summary judgment" (id.). Although plaintiff admitted that she had never filed a charge of
discrimination, Judge Weinstein rejected the defendants' oral request that the case be dismissed
without prejudice (id. at 5). Rather, the judge, acting sua sponte, held the case in abeyance to
permit plaintiff the opportunity to exhaust her administrative remedies (id.).
With respect to plaintiffs motion to amend, the defendants' counsel noted that Judge
Weinstein's ruling on the motion to dismiss the individual defendants made it unnecessary to
respond to the motion for leave to amend the complaint to add Langford as a defendant.
However, counsel also stated that defendants did not oppose "plaintiffs effort to add any factual
allegations" (id. at 3). Accordingly, Judge Weinstein orally granted plaintiffleave to amend her
complaint, saying "You can amend your complaint" (id. ). 6 Plaintiff immediately responded,
"I've done that" (id.), implying that she believed her Proposed Amendment constituted the
amended complaint. Plaintiff never filed a formal amended complaint.

6

Judge Weinstein's oral rulings were subsequently memorialized in a one-page order
dated November 18, 2010 (Document 54).
19

On November 22, 2010, plaintiff filed a charge of discrimination with the EEOC (Tingey
Declaration, Ex. 28). That charge made no mention of the Australian trip, but alleged that
plaintiff had been "terminated without reason" on July 19, 2010 (id. at 2). However, the charge
also alleged that Sanders, a United States citizen, had been treated better than plaintiff because
she was only suspended when plaintiff was fired, and that another United States citizen, David
Villaman, had been given the opportunity to work independently when plaintiff was not (id.). On
November 30,2010, the EEOC issued a right-to-sue notice upon plaintiffs request, noting that it
was unlikely to be able to complete its administrative processing of the charge within 180 days of
its filing (Tingey Declaration, Ex. 30). Less than one week later, this action was reassigned from
Judge Weinstein to this Court.

Plaintiff's Deposition Testimony
At her June 29,2011, deposition, plaintiff discussed her theories of liability. First,
plaintiff stated that neither race nor national origin discrimination played a part in Langford's
decision to terminate her in January 2009 (Pl. EBT at 250-51 ). Rather, plaintiff repeatedly
testified that Langford did not like her because he blamed her for causing Johnson to leave his
office (id. at 164, 182-84). According to plaintiff, Langford was mean to her, but not to Johnson
(id. at 181-82), and told both plaintiff and Johnson that he did not want them to work together

(id. at 92). Plaintiff also conceded that Sanders, who was merely suspended at the time plaintiff
was terminated, was herself a black woman of Jamaican descent (id. at 165-66).
Second, plaintiff claimed that Langford deliberately withheld plaintiff's itinerary because
he did not want her to go on the trip (id. at 73). Plaintiff also speculated that Langford did not
want her on the trip because she listed Johnson as her roommate (id. at 75). Plaintiff testified
that she did not know whether she needed an itinerary in order to obtain a visa (id. at 66), but was
20

aware that two other sales representatives, including Sanders, had received their itineraries five
days prior to the trip and had nonetheless gone to Australia (id. at 61-62).
Third, plaintiff clarified that she believed she had been terminated in July 2010 because
of her national origin, and not because of her race (id. at 18). Plaintiff testified, however, that
there was nothing besides the fact that she and Johnson were not allowed back into the Kew
Gardens Office that made her believe that Defendant did not like Jamaicans (id. at 164). Plaintiff
conceded that several of the sales representatives who worked at the Kew Gardens Office during
her tenure were black and/or Jamaican, and that at least one sales representative who was half
Chinese and half Jamaican continued to work at Kew Gardens at the time of plaintiff's
deposition (id. at 216-22). Plaintiff further testified that at least three black sales representatives
from the Wall Street Office were admitted to the Kew Gardens Office, and that she did not know
the national origins of any ofthem (id. at !57, 161-63). In addition, plaintiff conceded that
Jerome Jackson, a black man of Jamaican origin, was permitted to work independently after the
Wall Street Office closed (id. at 171-72).

Defendant's Motion for Summary Judgment
Defendant now moves for summary judgment. Construing plaintiff's pleadings as
alleging discrimination on the basis of race and national origin in violation of Title VII,
Defendant first argues that plaintiff has failed to make out a prima facie case of discrimination.
Specifically, Defendant argues that plaintiff cannot establish that her termination and/or any
adverse employment actions that occurred in connection with the Australian trip occurred under
circumstances giving rise to an inference of discrimination.
Second, Defendant argues that, even if plaintiff has made out a prima facie case of
discrimination, she cannot establish that Defendant's reasons for terminating its relationship with
21

plaintiff were pretexts for discrimination. Defendant implies that Langford refused to welcome
plaintiff back to the Kew Gardens Office because of"Langford's experiences with Plaintiff
during her prior two tenures" there (see Memorandum in Support of Defendant Just Energy's
Motion for Summary Judgment ["Defendant's Memo"] at 17). Defendant further argues that
plaintiff was not permitted to continue marketing on her own because of her "marketing history"
(id. at 18). Defendant notes that plaintiffs pleadings do not allege that any of Defendant's

employees ever made comments regarding plaintiffs race or national origin, and that plaintiff
herself concedes that other black and/or Jamaican sales representatives were allowed to join the
Kew Gardens Office and to market on their own.
In response to Defendant's motion, plaintiff submitted Plaintiffs Cross Motion, which
incorporated an "Affirmation" signed by plaintiff. Plaintiffs Cross Motion, despite its title, does
not request summary judgment in favor of plaintiff, but requests only that Defendant's motion for
summary judgment be denied. Moreover, although the submission contains a lengthy discussion
of the facts, both the "Cross Motion" and the "Affirmation" are unsworn.
In late March and early April 2012 - more than one month after the motion for summary
judgment was fully briefed and filed with the Court- plaintiff filed four additional submissions:
a document entitled "Plaintiffs supplemental motion to cross motion in opposition of
defendant's motion for summary judgment," a "supplemental counter statement" to Defendant's
statement of undisputed facts pursuant to Local Civil Rule 56.1, and sworn affidavits from Duane
Matthews and Shanda Walker. In a letter dated AprilS, 2012, Defendant characterized these
submissions as "improper surreply" papers and requested that this Court strike them sua sponte.
In the alternative, Defendant requested permission to move to strike or the opportunity to respond
to the papers.

22

In a Memorandum and Order dated April!O, 2012, this Court found that these documents
constituted unauthorized supplemental submissions. However, in light ofplaintiffspro se
status, the Court decided to consider the two affidavits and the "supplemental counter statement"

-i.e., Pl. Supp. 56.1- which more nearly satisfied the requirements of Local Civil Rule 56.1
than did the original counterstatement. The Court granted Defendant leave to submit proof in
response to anything contained in the affidavits or to respond to the "supplemental counter
statement" (Memorandum and Order dated Apr. 10,2012, at 2). Although Defendant
subsequently filed a three-page submission entitled, "Defendant Just Energy's Response to
Plaintiffs' Surreplies," that document only reiterated positions stated in earlier submissions.
DISCUSSION

I. The Summary Judgment Standard
Summary judgment is appropriate only when "the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). "A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials; or (B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."
Fed. R. Civ. P. 56(c). "If a party fails to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by Rule 56(c), the court may[, inter alia] ...
consider the fact undisputed for purposes of the motion [or] ... grant summary judgment if the

23

motion and supporting materials - including the facts considered undisputed - show that the
movant is entitled to it." Fed. R. Civ. P. 56(e).
"[A] court reviewing a motion for summary judgment must view the evidence in the light
most favorable to plaintiff and draw all reasonable inferences in her favor." DiStiso v. Cook,
-- F.3d --,No. 10-4304-cv, 2012 WL 3570755, at *2 (2d Cir. Aug. 21, 2012) (citing Amore v.

Navarro, 624 F.3d 522, 529 (2d Cir. 2010)). However, a court "cannot credit a plaintiffs merely
speculative or conclusory assertions." Id. (citing Major League Baseball Props., Inc. v. Salvino,

Inc., 542 F.3d 290,310 (2d Cir. 2008)). Moreover, "where a party relies on affidavits or
deposition testimony to establish facts, the statements 'must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated."' Id. (quoting Fed. R. Civ. P. 56(c)(4)).

Pro se submissions are held to less stringent standards than submissions drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89,94 (2007) ("[A]pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers."). Thus, a court must "read the pleadings of a pro se plaintiff liberally and interpret
them 'to raise the strongest arguments that they suggest."' McPherson v. Coombe, 174 F.3d 276,
280 (2d Cir. 1999). In addition, trial courts must be "especially cautious in deciding whether to
grant ... [summary judgment] in a discrimination case, because the employer's intent is often at
issue and careful scrutiny may reveal circumstantial evidence supporting an inference of
discrimination." Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). However, "the salutary
purposes of summary judgment - avoiding protracted, expensive and harassing trials - apply no
less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759

24

F.2d 989, 998 (2d Cir. 1985). Thus, in discrimination cases, as in all other civil cases, a plaintiff
has the burden of presenting "concrete particulars" to substantiate his claims. Id
The McDonnell Douglas Framework
Reading plaintiffs pleadings liberally, plaintiff is alleging employment discrimination
under the Title VII and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law
§290 et seq. Title VII discrimination claims are analyzed under the burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Brown v. City

ofSyracuse, 673 F.3d 141, 150 (2d Cir. 2012). This same framework also applies to
discrimination claims under the NYSHRL. See Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir.
2010) (citing Dawson v. Bumble & Bumble, 398 F.3d 211,216-17 (2d Cir. 2005)). Under the

McDonnell Douglas burden-shifting framework:
[P]laintiff bears the initial burden of proving by a preponderance of
the evidence a prima facie case of discrimination. The burden of
production then shifts to defendants, who must offer through the
introduction of admissible evidence a non-discriminatory reason
for their actions that, if believed by the trier of fact, would support
a finding that unlawful discrimination was not a cause of the
disputed employment action. Plaintiff then must show that the
proffered reason was merely a pretext for discrimination, which
may be demonstrated either by the presentation of additional
evidence showing that the employer's proffered explanation is
unworthy of credence, or by reliance on the evidence comprising
the prima facie case, without more.

Heyman v. Queens Village Committee for Mental Health for Jamaica Community Adolescent
Program, Inc., 198 F .3d 68, 72 (2d Cir. 1999) (internal quotations and citations omitted).
Under Title VII and the NYSHRL, a plaintiff establishes a prima facie case of intentional
discrimination by showing that "(1) he is a member of a protected class; (2) he was qualified for
the position he held; (3) he suffered an adverse employment action; and (4) the adverse action

25

took place under circmnstances giving rise to [an] inference of discrimination." Reynolds v.

Barrett, 685 F.3d 193,202 (2d Cir. 2012) (Title VII); see Spiegel, 604 F.3d at 80 (NYSHRL).
Although the evidence necessary to establish plaintiff's initial burden has been characterized by
the Second Circuit as "minimal" and "de minimis," see Zimmermann v. Associates First Capital

Corp., 251 F.3d 376,381 (2d Cir. 2001) (citing cases), it "is not non-existent." Almondv.
Westchester County Dep't ofCorr., 425 F. Supp. 2d 394,399 (S.D.N.Y. 2006). "[S]ummary
judgment must be granted whenever the undisputed facts, viewed most favorably to the nonmoving plaintiff, do not make out a prima facie case." !d. In addition, summary judgment is
appropriate where the only evidence offered to prove the prima facie case is conclusory and
insufficiently particular to permit a defendant to respond, since "[t]o allow a party to defeat a
motion for summary judgment by offering purely conclusory allegations of discrimination, absent
any concrete particulars, would necessitate a trial in all ... cases." Meiri, 759 F.2d at 998.
In this case, Defendant concedes that plaintiff can establish the first three elements of his

prima facie case, and argues only that the "[p ]laintiff has brought forth no admissible evidence
demonstrating that any adverse employment action occurred under circumstances that give rise to
an inference of discrimination." Defendant's Memo at II. Defendant's Memo principally
addresses the circmnstances surrounding plaintiff's termination, noting, inter alia, that plaintiff
admitted (I) that representatives at the Kew Gardens Office were a "diverse group," (2) that
another Jamaican, Jerome Jackson, was permitted to market on his own, (3) that Langford was
difficult with all sales representatives, regardless oftheir race or national origin, and (4) that
plaintiff herself attributed Langford's mistreatment to his personal dislike of plaintiff. !d. at 1115. Although Defendant notes that plaintiff testified that she could not think of anything aside
from her terminations that was discriminatory, Defendant also argues that "there is no evidence
26

of a causal connection between Plaintiff's inability to go on the trip [to Australia] and her race or
national origin," id. at 17, and that any allegations regarding discrimination relating to the
Australian trip are time-barred. !d. at 16, n. 7.
Plaintiffs responsive papers do not directly address Defendant's arguments. Rather, they
contain numerous, unsworn allegations of facts, some of which relate to the incentive trip and
plaintiffs terminations. Even assuming that Plaintiff's Cross Motion and the Affirmation
appended thereto were sworn, however, none of those allegations establish that plaintiff suffered
an adverse employment action under circumstances that give rise to an inference of
discrimination.

The Sales Incentive Trip to Australia
Preliminarily, this Court must determine whether plaintiff is raising a discrimination
claim in connection with Langford's actions relating to the trip to Australia. Citing to a portion
of plaintiffs deposition transcript in which plaintiff stated that she could not, at that moment,
"think of anything else [other than Langford's refusal to welcome plaintiff back to the Kew
Gardens Office] that happened during [her] time with Just Energy that ... was discriminatory,"
Pl. EBT at 254, Defendant asserts that plaintiffs discrimination claims are "based solely on the
denial of her transfer back to Kew Gardens after the Wall Street Office closed." Defendant's
Memo at 16. However, plaintiffs Proposed Amendment discusses the Australian trip at length,
alleging that Langford deliberately withheld plaintiffs and Johnson's itineraries in order to
prevent them from going on the trip. Proposed Amendment at 3.
In light of plaintiff's pro se status, this Court construes the Proposed Amendment as an
amended complaint. Read liberally, that document suggests that plaintiff intended to raise a
discrimination claim relating to the Australian trip. Accordingly, this Court will address the

27

merits of Defendant's two arguments relating to this claim: (1) that the claim is time-barred and
(2) that plaintiff has offered no admissible evidence that any adverse employment action plaintiff
suffered in connection with the Australian trip took place under circumstances giving rise to an
inference of discrimination.
The first of these arguments is raised solely in a footnote, in which Defendant observes
that the trip to Australia took place in March 2009, but that plaintiff did not file a charge of
discrimination with the EEOC until November 2010. Defendant's Memo at 16, n. 7. Defendant
then reasons that, since EEOC claims must be filed within 300 days of the incident giving rise to
the claim, plaintiff's claims regarding the Australian trip are time-barred. !d. (citing Ragone v.
Atlantic Video at Manhattan Ctr., 595 F.3d 115, 126 (2d Cir. 2010)).
"Exhaustion of administrative remedies through the EEOC is an essential element of the
Title VII and ADEA statutory schemes and, as such, a precondition to bringing such claims in
federal court." Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001)
(per curiam) (internal quotation marks omitted). The time period for filing the charge of
discrimination varies, depending on whether the individual files his charge directly with the
EEOC or with a state or local agency. In New York, which has both state and local fair
employment agencies, an individual who initially files a grievance with the state or local agency
must file a charge with the EEOC within 300 days "after the alleged unlawful employment
practice occurred," or within 30 days after receiving notice that the state or local agency has
terminated the proceeding, whichever is earlier. 42 U.S.C. § 2000e-5(e)(1). If a charge is filed
solely with the EEOC, it must be filed within 180 days after the alleged unlawful employment
practice occurred. !d. However, these time limits are not jurisdictional and are, therefore,
"subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S.
28

385, 393 (1982). Equitable tolling may be appropriate, for example, "where the plaintiff actively
pursued judicial remedies but filed a defective pleading during the specified time period." Brown
v. Parkchester S. Condos., 287 F.3d 58, 60 (2d Cir. 2002)
In this case, it is not clear whether plaintiff failed to pursue her administrative remedies
within the 300-day deadline. In her complaint, filed in August 2010, plaintiff alleged that she
attempted to file a charge with the EEOC but was told that the EEOC lacked jurisdiction.
Complaint at 2. This pleading did not allege precisely when plaintiff contacted the EEOC, or
what adverse employment actions were the subject of her proposed charge of discrimination.
Moreover, since it is clear that plaintiff actively pursued her administrative remedies- albeit
ineffectively- it is impossible to entirely discount the possibility that equitable tolling might be
appropriate in this case. Indeed, in her Proposed Amendment, plaintiff specifically alleged that
she did not know whether the EEOC's claim that it lacked jurisdiction was "true," but noted that
the equitable exhaustion requirement is "[s]ubject to waiver, E Stop [sic], and Equitable
Tolling." Proposed Amendment at 4.
Defendant, which raises the time-bar argument in a footnote, does not address the issue of
whether equitable tolling might be appropriate. Accordingly, this Court declines to dismiss
plaintiff's discrimination claims arising from the Australian trip as time-barred and will reach the
question of whether Defendant's actions relating to the trip took place under circumstances
giving rise to an inference of discrimination.
Plaintiff has offered no admissible evidence that plaintiff suffered an adverse employment
action in connection with the Australian trip, or that such adverse action took place under
circumstances giving rise to an inference of discrimination. It is beyond dispute that plaintiff was
aware that she qualified for the trip to Australia sometime prior to January 15,2009, when she
29

electronically registered for the trip. Pl. EBT at 30; Tingey Declaration, Ex. 22. Although a
secretary assisted plaintiff with the online registration, plaintiff remained "in front of the
computer screen" throughout the registration process and was, therefore, in position to read any
information supplied by the website. Pl. EBT at 30.
According to Megan Taylor, a Senior Program Manager in the Events Division of Pareto,
the website advised registrants who did not hold a Canadian or American passport to contact the
Australian Consulate to find out what documentation was required for entry into Australia.
Taylor Aff. at ~7. However, plaintiff, who held a Jamaican passport, apparently did not see this
portion of the website. See Pl. EBT at 41. Based on Johnson's experiences in connection with a

2007 trip to Brazil, plaintiff mistakenly believed that Just Energy would obtain the visa for her.
!d. at 42. Accordingly, plaintiff never contacted the consulate.

Plaintiff remained unaware that she needed to obtain a visa on her own until she and
Johnson retrieved their itineraries from the Kew Gardens Office. !d. at 68. However, the two
did not actually go to the Kew Gardens Office until February 27, 2009- approximately one week
before the trip was to begin. !d. at 261. Since the Australian authorities required that visa
applications be made 15 days in advance, id. at 79, it was already too late to obtain the necessary
VISa.

Although it appears that plaintiff's missed the trip because of her misunderstanding
regarding who was responsible for obtaining the visa, plaintiff nonetheless blames Langford,
alleging that he deliberately withheld her itinerary because he did not want her to go on the trip.
However, this theory assumes (I) that plaintiff needed a written itinerary in order to apply for an
Australian visa, (2) that Langford knew of this requirement and the 15-day deadline, and (3) that
Langford did not inform plaintiff that he had her itinerary in order to prevent her from going on
30

the trip. Plaintiff has adduced no evidence to establish any of these facts. First, plaintiff testified
at her deposition that she did not know if she needed an itinerary to apply for a visa, id. at 66, and
adduced no evidence relating to Australian visa applications or requirements. Second, plaintiff
adduced no evidence that Langford knew of the visa requirements and the deadline. To the
contrary, plaintiff has adduced evidence that other sales representatives received their itineraries
five days prior to the trip but were able to go nonetheless. !d. at 61-62.
Third, plaintiff has produced no admissible evidence that Langford deliberately withheld
the itinerary. Plaintifftestified at her deposition that, upon handing plaintiff and Johnson their
itineraries, Delgado told them that the itineraries had arrived much earlier and that "everyone had
already received theirs." Id. at 73. According to plaintiff, Delgado also said that she "didn't
know why Chad did this," id. at 67, thereby implying that Langford deliberately withheld their
itineraries. However, plaintiff has not provided an affidavit from Delgado, and has not suggested
a hearsay exception which would permit Delgado statements to be introduced for the truth of the
matter asserted therein.
Finally, even if Delgado's hearsay statements were admissible, they would not establish
that Langford's actions were attributable to discriminatory animus. Although plaintiff alleges
that she and Johnson- both of whom are Jamaican- received their itineraries late, they were not
the only sales representatives to receive their itineraries so late. !d. at 61-62. Moreover, because
plaintiff and Johnson worked as a team, the coincidence that they were the among the last to
receive itineraries would not, standing alone, imply race or national origin discrimination.
Indeed, plaintiff herself speculated that Langford did not want her to go on the trip because she
listed Johnson as her roommate. Id. at 75. Accordingly, plaintiff has not established that any

31

adverse employment action she may have suffered in connection with the Australian trip took
place under circumstances giving rise to an inference of discrimination.

PlaintifFs Termination in January 2009
Plaintiff's Proposed Amendment implies that plaintiff is seeking to· advance a
discrimination claim in connection with her termination by Langford in January 2009. However,
while plaintiff asserted at her deposition that her termination was "discriminatory," she testified
that she herself did not believe that this discrimination was due to her race or national origin. !d.
at 251. Instead, she speculated that Langford did not like her personally because of her role in
luring Johnson away from the Kew Gardens Office.
In Plaintiff's Cross Motion, plaintiff correctly notes that her speculation "cannot be
considered by the court" as proof of Langford's motives. Plaintiffs Cross Motion at 4.
Nonetheless, this speculation serves to highlight the fact that plaintiff has no proof of a
discriminatory motive. Indeed, plaintiffs claims of discrimination rest solely on allegations that
she was treated differently from Sanders, who was suspended rather than fired. By plaintiff's
own testimony, however, Sanders was a black woman of Jamaican descent. Pl. EBT at 165-66.
Accordingly, even these allegations do not suggest that plaintiffs January 2009 termination took
place under circumstances giving rise to an inference of race or national origin discrimination.

PlaintifFs Termination in July 2010
In analyzing whether plaintiff has adduced sufficient evidence to establish that her
termination took place under circumstances giving rise to an inference of discrimination, this
Court notes that two distinct acts led to plaintiff's termination. First, Langford refused to allow
plaintiff to transfer back to the Kew Gardens Office. Second, Siddiqui determined that plaintiff
should not be permitted to market on her own.

32

Langford's Actions
With respect to the refusal to permit plaintiff to transfer to Kew Gardens, this Court notes
that Langford's actions occurred after plaintiff left the Kew Gardens Office twice: voluntarily in
2008 and involuntarily in 2009. After plaintiff left the Kew Gardens Office the first time,
Langford made extraordinary efforts to lure plaintiff and Johnson back to his office. By
plaintiff's own account, Langford "got a little happy" when those efforts succeeded and plaintiff
and Johnson agreed to return in mid-2008. Plaintiff's Cross Mot. at 2.
In January 2009, Langford terminated plaintiff. As the Second Circuit has observed in
other contexts, "where the person who made the decision to fire was the same person who made
the decision to hire, it is difficult to impute to [him] an invidious motivation that would be
inconsistent with the decision to hire." Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000)
(quoting Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997)). 7 Indeed, as noted
above, plaintiff herself did not believe that her termination was due to her race or national origin.
Pl. EBT at 251. Rather, she speculated that Langford did not like her personally because of her
role in luring Johnson away from the Kew Gardens Office.
Sometime after plaintiff was terminated, Johnson left the Kew Gardens Office for a
second time to join plaintiff in the Wall Street Office. If Langford disliked plaintiff for luring
Johnson away the first time, their relationship was unlikely to have improved when Johnson left
the Kew Gardens Office for a second time. Accordingly, when plaintiff and Johnson jointly

7

While the Second Circuit may not, in any reported opinion, have "pass[ ed] judgment on
the extent to which this [same actor] inference is either required or appropriate outside the
[ADEA] ... context in which it generally is applied," Feingoldv. New York, 366 F.3d 138, 155
n. 15 (2d Cir. 2004), this Court notes that the Second Circuit has used this inference in
unreported Title VII cases. See, e.g., Filozof v. Monroe Cmty. Col!., 411 Fed. Appx. 423, 427
(2d. Cir. 2011) (summary order); Mastrolillo v. Connecticut, 352 Fed. Appx. 472,474 (2d Cir.
2009) (summary order).
33

sought to be readmitted to the Kew Gardens Office, Langford- who had not wanted plaintiff and
Johnson to work together, Pl. EBT at 92- refused.
At her deposition, plaintiff conceded that there was nothing, aside from the mere fact that
she and Johnson were not admitted, that made her believe that she had been discriminated against
on the basis of race or national origin. Pl. EBT at 164. However, plaintiff presents no evidence
regarding how many sales representatives sought to transfer from the Wall Street Office, how
many were accepted into the Kew Gardens Office, and what the nationalities of those
representatives were. Indeed, at her deposition, plaintiff could only recall the names of four sales
representatives who transferred: Adler Porter, John, Lavonne and Tiara. Pl. EBT at 157.
Plaintiff testified that three of these sales representatives were black, but she did not know the
national origins of any of the three. !d. at 161-63. Plaintiff also did not know how many other
sales representatives transferred, saying that there "probably [were] more," but that she could not
estimate the "rough number." Id. at 157.
Even assuming that plaintiff and Johnson were the only two sales representatives rejected
by Langford, this fact alone would not permit an inference of national origin discrimination.
While plaintiff and Johnson are both Jamaican, they worked together closely as a team. In
addition, they both reported to the Kew Gardens Office several days after the Wall Street Office
closed, by which time other former Wall Street employees were already working at Kew
Gardens. Moreover, plaintiff testified that several of the sales representatives who worked at the
Kew Gardens Office during her tenure were black and/or Jamaican, and that at least one sales
representative who was half Chinese and half Jamaican continued to work at Kew Gardens at the
time of plaintiffs deposition. !d. at 216-22. In light of all of these circumstances, one carmot

34

infer solely from Langford's refusal to permit plaintiff and Johnson to join his staff that his
actions had anything to do with their national origin.

Siddiqui's Actions
There is also no evidence from which one could infer that Siddiqui's decision not to
permit plaintiff and Johnson to market on their own was a product of race or national origin
discrimination. Indeed, plaintiff herself testified that Jerome Jackson, a black man of Jamaican
origins, was permitted to work independently after the Wall Street Office closed. Id. at 171-72.
Plaintiff makes no effort to reconcile this fact with her allegations of discrimination.

Defendant's Non-Discriminatory Rationale for Termination
Even assuming that plaintiff could make out a prima facie case of discrimination in
connection with her termination, the evidence would not establish that Defendant's nondiscriminatory reasons for Langford and Siddiqui's actions were merely a pretext for
discrimination. The uncontroverted evidence estabiishes that, for almost two years after she
began working for Just Energy, plaintiff was the subject of relatively few customer complaints or
allegations. Only two customers complained about plaintiff during her first year on the job, and
plaintiff had only three complaints leveled against her before mid-September 2009.
Beginning in mid-September 2009, however, the number of allegation made by customers
against plaintiff increased. According to the IC Summary, there were two complaints against
plaintiff during an eight-day period beginning September 16, 2009. See Tingey Declaration, Ex.
23. Another complaint was made against her on February 13,2010. /d. All of these allegations
were made sometime after the New York Attorney General had expressed concerns about the
conduct of some of Defendant's sales representatives, and after Defendant had entered into an
"Assurance of Discontinuance" or "AOD" with the Attorney General.
35

These closely spaced complaints, along with other complaints leveled against Johnson at
approximately the same time, see Tingey Declaration, Ex. 8, triggered internal regulatory
scrutiny, as reflected in e-mails in mid-March 2010. See Tingey Declaration, Exs. 24 & 25.
Faced with responsibility for plaintiffs actions, Ali Zamany, who was plaintiff's Regional
distributor at the time, blamed plaintiff, asserting that she did not show up for meetings and was
"affecting ... office demeanor." Tingey Declaration, Ex. 25. Zamany was apparently able to
convince Siddiqui that plaintiff was at fault, for she and Zamany both requested that plaintiff be
given a "final warning." !d. The Corporate & Customer Relations Department declined to do so,
but Zamany exacted a promise that plaintiff would attend the morning meeting five days a week.
Two more customers complained about plaintiff before July 8, 2010, when the Wall
Street Office closed amid charges of wide-spread fraud. When plaintiff did not arrive at the Kew
Gardens Office until several days after the Wall Street Office closed, it would have been readily
apparent to all concerned that plaintiff had not been visiting the Wall Street Office regularly.
Indeed, while Langford does not explicitly state in his affidavit why he refused to admit plaintiff
and Johnson to his office, Langford does state that plaintiff and Johnson had not regularly
attended meetings when they worked in Kew Gardens and had customer complaints leveled
against them. Langford Aff. at ~~9-1 0. In light of the increased regulatory scrutiny and the
regional distributor's responsibility for ensuring compliance, it is obvious why Langford was not
interested in having plaintiff and Johnson return.
Siddiqui had already been convinced by Zamany that plaintiff was a liability. She made
that view clear to Morgan, expressing the view that plaintiff and Johnson "would potentially pose
a risk to our business without the leadership and guidance of a Regional [Distributor] and the

36

benefits of visiting a Regional office on a regular basis." Tingey Declaration at Ex. 25.
Accordingly, Siddiqui denied plaintiff permission to market on her own and terminated her.
In her responsive papers, plaintiff offers no evidence to show that this non-discriminatory
explanation for plaintiff termination was pretextual. Plaintiff's Cross Motion explains in detail
why the customer allegations were without merit, but plaintiff does not deny that these
allegations were made. In addition, Plaintiff does not offer any evidence to suggest that Langford
or Siddiqui were motivated by discriminatory animus. As explained at length above, the
circumstantial evidence suggests that plaintiff's termination was based solely on business
considerations, not discrimination. Accordingly, plaintiff has not shown that Defendant's nondiscriminatory reasons for plaintiff's termination were merely a pretext for discrimination.

CONCLUSION
For the reasons set forth above, defendant Just Energy's motion for summary judgment
dismissing this case is granted. The Clerk of Court is directed to enter judgment in accordance
with the Memorandum and Order and to close this case.
SO ORDERED.
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I

Dated: September 17,2012
Brooklyn, New York

37

SANDRA L. TOWNES
United States District Judge

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