Litchhult v. Ustrive2, Inc.

Filing 55

ORDER granting 50 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, the Court grants defendant's motion for summary judgment in its entirety, concluding that the evidence in the record does not raise a triable issue of fact as to plaintiff's claims of retaliation or breach of contract. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/10/2013. (O'Donnell, Kaitlin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-3311 (JFB) (ARL)

_____________________

MARY LITCHHULT,
Plaintiff,
VERSUS

USTRIVE2, INC.,
Defendant.
___________________
MEMORANDUM AND ORDER
July 10, 2013
__________________

Law §§ 296 et seq. (“New York State
Human Rights Law” or “NYHRL”); (2)
defendant’s reasons for terminating plaintiff
were nonretaliatory (attributable to a
company-wide reduction in force) and were
not pretextual; (3) plaintiff’s first breach of
contract claim fails because the express
terms of the employment agreement clearly
state that plaintiff’s employment was to be
“at will,” and extrinsic evidence shows that
plaintiff understood her employment to be
terminable on such grounds; and (4)
plaintiff’s second breach of contract claim
fails because uncontroverted evidence shows
that defendant gave plaintiff the opportunity
to exercise her stock options, which she
declined.

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Mary Litchhult
(“plaintiff” or “Litchhult”) brings this action
against
defendant
USTRIVE2,
Inc.
(“defendant” or “Ustrive2”) alleging that
defendant terminated her employment on
April 24, 2009, in retaliation for her prior
reporting of alleged gender discrimination or
a hostile work environment. Additionally,
plaintiff contends that defendant breached
its employment agreement with plaintiff by
(1) terminating her less than two years after
she had started work, and (2) failing to
provide her with employee stock options.
Defendant
moves
for
summary
judgment, pursuant to Rule 56 of the Federal
Rules of Civil Procedure, raising the
following arguments: (1) plaintiff cannot
show a prima facie case of retaliation
pursuant to Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. §§ 2000, et
seq. (“Title VII”) and New York Executive

For the reasons set forth herein, the
Court grants defendant’s motion for
summary judgment in its entirety,
concluding that the evidence in the record
does not raise a triable issue of fact as to
plaintiff’s claims of retaliation or breach of

1

demonstrates that the parties intended for
plaintiff’s position to be terminable at will
by either party at any time. Even construing
the evidence most favorably to plaintiff, no
rational jury could conclude otherwise.
Similarly, although plaintiff contends that
defendant breached the agreement by failing
to provide her with stock options, the
uncontroverted evidence shows that plaintiff
was awarded all stock options to which she
was entitled under the employment
agreement, but that she elected not to
exercise the options; accordingly, the
options were cancelled on account of her
failure to exercise the options within the
requisite 90-day period following her
termination.

contract. Given the uncontroverted evidence
in the record, no rational jury could find in
plaintiff’s favor in connection with either
claim.
In particular, with respect to the
retaliation claim, the uncontroverted
evidence in the record – consisting of both
sworn statements and documents –
demonstrates that the decision to terminate
plaintiff for budgetary reasons was made in
March 2009, prior to her complaint
concerning a PowerPoint slide shown at an
April 8, 2009 meeting and an accompanying
comment made by an independent
contractor. Plaintiff has offered no evidence
to the contrary. Moreover, defendant has
articulated, and provided uncontroverted
evidence of, a legitimate, non-discriminatory
reason
for
terminating
plaintiff’s
employment – namely, that the termination
was part of what became a company-wide
reduction-in-force that ended with UStrive2
filing for bankruptcy in October 2009, and
then formally dissolving in early 2010.
Indeed, no one was hired to replace plaintiff.
Thus, even assuming arguendo that the
decision to terminate plaintiff was made
after the April 8, 2009 incident and that an
inference of retaliation could be drawn from
such temporal proximity, that inference
alone is insufficient to overcome
defendant’s articulated, non-discriminatory
reason or for a rational jury to find pretext.
In short, plaintiff has offered absolutely no
evidence from which a rational jury could
find that defendant’s articulated business
reason for terminating plaintiff was a pretext
for retaliation.

I.

BACKGROUND
A.

Facts

The Court has taken the facts set forth
below from the parties’ depositions,
affidavits, and exhibits, and from the parties’
respective Rule 56.1 Statements of Facts.
Upon consideration of a motion for
summary judgment, the Court shall construe
the facts in the light most favorable to the
non-moving party. See Capobianco v. City
of New York, 422 F.3d 47, 50 (2d Cir. 2005).
Unless otherwise noted, where a party’s 56.1
Statement is cited, that fact is undisputed or
the opposing party has pointed to no
evidence in the record to contradict it.1
1

Although defendant’s Rule 56.1 Statement contains
specific citations to the record, the Court cites to the
Rule 56.1 Statement instead of to the underlying
citation to the record.
The Court notes that plaintiff also submitted a Rule
56.1 Statement in which she admits the majority of
the statements contained in defendant’s 56.1
Statement. Where plaintiff denies a statement,
however, she offers no admissible evidence to
support her blanket assertion. Where “the opposing
party [] fails to controvert a fact so set forth in the []

Plaintiff’s breach of contract claim also
cannot survive summary judgment. The
employment agreement unambiguously
states that it is an employment-at-will
contract. Even if the Court were to conclude
that the language of the agreement was
ambiguous, all of the extrinsic evidence
2

1. Employment at Protocol

2. Offer and Acceptance
Plaintiff began her search for new
employment, focusing on positions in the
on-demand industry so that she could work
remotely from home. (Id. ¶ 15.) When
plaintiff first learned of Ustrive2, she
understood it to be an e-commerce company
that would, described most simply, set up
virtual shops from which people could sell
their goods online. (Id. ¶ 16.) Plaintiff
decided to inquire about positions at
Ustrive2, which was branching out to ondemand media. (Id. ¶ 17.) Plaintiff first
began communicating with Ustrive2 about
possible employment in late August or early
September of 2008, speaking with Harlan
Lyons (“Lyons”), Ustrive2’s then-Chief
Executive Officer (“CEO”). (Id. ¶ 18.)
Following several phone conversations,
Lyons sent plaintiff a proposed employment
agreement. (Id. ¶ 21.) The relevant facts
concerning the finalization of plaintiff’s
employment agreement with Ustrive2 are as
follows.

Prior to her employment at Ustrive2,
plaintiff worked at Protocol Technologies
(“Protocol”) from 2003 until approximately
April/May 2008. (Def.’s 56.1 Statement
(“Def.’s 56.1”) ¶ 7.) Protocol was an ondemand media company specializing in a
business that has since become obsolete,
namely, burning software onto CDs and
movies and television programs onto DVDs.
(Id. ¶¶ 7-9.) Plaintiff held an at will position
at Protocol. (Id. ¶ 12.) As the company’s
financials worsened, she decided to break
with Protocol and resigned voluntarily. (Id.
¶ 11.)

Rule 56.1 statement, that fact will be deemed
admitted.” Giannullo v. City of New York, 322 F.3d
139, 140 (2d Cir. 2003) (citing Local Rule 56.1(c));
see also MetroPCS N.Y., LLC v. Vill. of E. Hills, 764
F. Supp. 2d 441, 444 (E.D.N.Y. 2011). Further,
plaintiff’s counterstatements, stating that she “can
neither admit or deny” defendant’s statement (see
Pl.’s 56.1 Statement (“Pl.’s 56.1”) ¶ 5), or that she
“does not know that for a fact” (id. ¶¶ 105-07), serve
as admissions to the corresponding facts in
defendant’s 56.1 Statement under applicable law. See
Aztar Corp. v. NY Entm’t LLC, 15 F. Supp. 2d 252,
254 n.1 (E.D.N.Y. 1998) (stating that defendant’s
“56.1 Statement is replete with responses of lack
knowledge or information sufficient to either admit
or deny, [which does] not create[] any issues of fact,”
and noting that “[u]nder Local Rule 56.1, [a]ll
material facts set forth in the statement required to be
served by the moving party will be deemed to be
admitted unless controverted by the [counter 56.1]
statement” (citation and internal quotation marks
omitted)); see also Alfano v. NGHT, Inc., 623 F.
Supp. 2d 355, 363 (E.D.N.Y. 2009) (“[P]laintiff
frequently ‘denies knowledge or information
sufficient to form a belief as to the truth or falsity of’
defendants’ statement of fact . . ., which is not
sufficient to create an issue of fact for Rule 56
purposes.”). In any event, because plaintiff is pro se,
the Court has examined the record carefully and
deems as admitted only those facts in defendant's
Rule 56.1 Statement that are supported by admissible
evidence and that are not controverted by other
admissible evidence in the record.

At some time during plaintiff and Lyons’
conversations regarding the terms of
plaintiff’s employment, plaintiff wrote on
the first page of the received draft
employment
agreement
the
phrase,
“employment at will state  AZ & NY,”
which plaintiff understood to mean “[t]hat
Arizona and New York are employment at
will states.” (Id. ¶ 22 (citing Def.’s Mot. for
Summ. J. Ex. B, Pl.’s Dep. at 155:23 –
156:10, 168:3 – 170:8; 379:10-17).) Plaintiff
also wrote on the first page of the draft
agreement the phrase, “2 yr term.” (Id.
¶ 25.) Contained in the draft agreement was
a proposed “Term,” stating “two years –
employment at will by Ustrive2 Inc.” (Id.
¶ 26.) At her deposition, plaintiff testified
that she understood this phrase to mean that
she was free to leave her employment at any
time and for any reason during the two-year
time period. (Id. ¶ 28 (citing Def.’s Mot. for
3

On September 15, 2008, plaintiff began her
employment at Ustrive2 in the position of
Vice President. (Id. ¶ 41.)

Summ. J. Ex. B, Pl. Dep. at 177:24–178:8,
340:3–341:5, 341:10-23, 344:20–345:11).)
Additionally, plaintiff asked Lyons to
remove the two year time restriction from
the language, “two years – employment at
will by Ustrive2 Inc.” because she feared
that the “two year” language might serve as
a type of non-compete provision, limiting
her ability to find another job should she be
released from Ustrive2. (Id. ¶¶ 27-29.)

3. Employment at Ustrive2
Plaintiff was employed at Ustrive2 from
September 15, 2008 to April 24, 2009. (Id.
¶ 45.) The Company was composed of
several divisions, one of which is of
particular relevance here and entitled,
RightNOW. (Id. ¶ 52.) Plaintiff was a
member of this division during her period of
employment. She (along with other
members of that group) focused on
acquiring clients in the on-demand video
business industry. (Id. ¶¶ 45-46.) In
particular, plaintiff “engag[ed] content
owners to participate in the DVD ondemand system,” “[e]ngag[ed] retailers to
participate in the DVD on-demand system,”
and “[e]ngag[ed] . . . backend users to utilize
the DVD on-demand system.” (Id. ¶ 47.)

In fact, the draft agreement did contain a
non-compete provision, with which plaintiff
also took issue. (See id. ¶¶ 29-31.) The
provision states “that you will not compete
directly or indirectly with Ustrive2 in any
similar business for period of two years
following your departure from Ustrive2 for
any reason.” (Id. ¶ 30.) The uncontroverted
evidence shows that plaintiff wanted this
provision removed from the draft agreement
because she was concerned that it did not
allow for her to receive any compensation
during the period of non-competition
immediately following a termination of her
employment. (Id. ¶¶ 31-32.)

4. Ustrive2’s Financial Problems
In March 2009, Ustrive2 consisted
mainly of three divisions, one of which was
RightNOW. (Id. ¶ 52.) However, by March
2009, Ustrive2 had not produced significant
revenue in any of the markets it served, and
further, had difficulty obtaining funding
from investors. (Id. ¶¶ 53-54.) Around that
same time, Ustrive2’s CEO Lyons left the
Company and was replaced by Jeff
Kukowski (“Kukowski”), who served as the
Company’s interim CEO. (Id. ¶ 55.)

On September 30, 2008, plaintiff
accepted Ustrive2’s offer of employment,
formally executing Lyons’ revised offer
letter. (See id. ¶ 35.) Plaintiff’s fullyexecuted acceptance of employment
contains no material changes from the draft
agreement, with the exception of two
elements: (1) a change in plaintiff’s job
position (from “Director of Business
Development”
to
“Vice
President
Multimedia Distribution”); and (2) a
removal of the non-compete provision. (Id.
¶ 36.) At her deposition, plaintiff confirmed
that she understood the striking of the noncompete agreement to mean that she could
have left Ustrive2 for a better job
opportunity had one arisen. (Id. ¶ 37.)
Notably, the Term “two years – employment
at will by Ustrive2 Inc.” language remained
untouched in the final agreement. (Id. ¶ 39.)

On reviewing the Company’s financials,
Kukowski faced the hard numbers: he
discovered that Ustrive2 had “burned
through” approximately two million dollars
in funds that had been provided by investor.2
2

In her deposition testimony, plaintiff admitted that
Ustrive2 was experiencing financial problems in

4

relation to how quickly Ustrive2 went
through its money. (Id. ¶ 75.) Urion
presented the Current Burn Chart at a
meeting held on March 15, 2009, at which
time Urion, Manley, and Kukowski agreed
that certain identified members of
RightNOW had to be terminated. (Id. ¶¶ 7779.)

(Id. ¶ 57.) Additionally, Kukowski learned
more about RightNOW’s business model,
concluding that it was not a profitable one
for the Company. (Id. ¶ 62.) In particular, he
learned that most companies in the ondemand media industry (like RightNOW)
invested hundreds of millions of dollars
before exiting the market due to insufficient
revenues and returns; he also learned that
before Ustrive2 acquired RightNOW, its
previous owner had raised and spent nearly
forty million dollars while only generating
approximately two million dollars during the
course of several years. (Id.) On discovering
that Ustrive2 would have to invest millions
into RightNOW, with the promise of little to
no return, Kukowski became increasingly
unconvinced as to RightNOW’s overall
benefit to the Company, especially given
that the division had failed to generate any
revenue in its first six months of time at the
company. (Id. ¶¶ 62-64.) In light of
Ustrive2’s struggling financial condition, as
well
as
RightNOW’s
limited-to-no
profitability, Kukowski decided to stop
investing
the
Company’s
already
constrained financials into RightNOW. (Id.
¶ 67.) With this decision made, Kukowski
turned to an even more difficult
determination: whom to lay off. (Id.)

5. Terminations
Following Kukowski, Manley, and
Urion’s March 18, 2009 determinations,
RightNOW members Jennifer Martinez
(“Martinez”) and Eric Cox (“Cox”) were
selected for termination in March 2009 in
the hopes that Ustrive2’s burn rate (i.e., the
rate at which the Company went through
money) could be diminished by taking
Martinez and Cox’s respective salaries out
of the equation. (Id. ¶¶ 72, 76, 79.)
Accordingly, Cox and Martinez were
terminated, their respective positions in the
RightNOW division were eliminated, and
the Company did not hire replacements for
them. (Id. ¶¶ 81, 84.)
Although the decision to terminate both
Martinez and Cox was made in March 2009,
Cox’s termination did not become effective
until April 17, 2009, and Martinez’s, not
until May 18, 2009. (Id.) This point is
relevant because Martinez submitted an
internal complaint concerning an April 8,
2009 tech team meeting, at which time
comments were made during a slideshow
presentation (discussed in greater detail
infra) that offended her. (Id. ¶ 87.) Thus,
plaintiff contends that Martinez, like
plaintiff, was terminated because of her
complaint. The final decision to terminate
Martinez, however, had been made as of
March 2009, before Martinez had submitted

Lay-off decisions were made by a group
of individuals, including Kukowski, Josh
Manley (“Manley”) (Ustrive2’s Co-Founder
and President), Melinda Urion (“Urion”),
and Maria Utagawa (“Utagawa”), the latter
of whom served as a Human Resources
(“HR”) Consultant during the process. (Id.
¶ 70.) On March 15, 2009, Urion created an
Excel spreadsheet that identified, among
other things, Ustrive2’s employees and their
“Current Burn,” i.e., those employees’
2009, and noted that various employees were being
laid off or reduced to part-time status at that time.
(Def.’s 56.1 ¶¶ 68-69.)

5

her complaint. (Id.) 3 In fact, Manley and
Kukowski already had notified Aaron Knoll,
RightNOW’s founder, of the decision to
terminate Cox and Martinez before the time
of the April 8, 2009 meeting. (Id. ¶ 91.)

meeting which plaintiff contends indicates
Ustrive2’s retaliation against plaintiff
because she was terminated approximately
sixteen days after the April 8, 2009 meeting.
(See id.) Defendant contends, however, that
at the time of the April 13, 2009 meeting,
when the final decision to terminate plaintiff
was made, the decisionmakers were unaware
of either plaintiff or Martinez’s respective
complaints regarding the April 8, 2009
meeting. (See id. ¶ 105.) As this meeting is
the main source of contention between the
parties, the Court sketches the relevant
details as to what took place.

The termination of Cox and Martinez,
however, was not enough. Additional cuts
were necessary. Thus, the Company made
further lay-off decisions, this time
designating RightNOW members Syd
Dufton (“Dufton”) and plaintiff for
termination. (Id. ¶ 92.) Plaintiff and Dufton
were identified for termination at a meeting
held on March 23, 2009, at which time
Manley and Kukowski agreed to speak with
Knoll about eliminating plaintiff and Dufton
from the employment roster. (Id. ¶¶ 94-95.)
Ultimately, the final decision to terminate
plaintiff was made on April 13, 2009, with
her termination becoming effective April 24,
2009. (Id. ¶ 100.) Dufton was similarly
terminated, with the final decision being
made on April 13, 2009, and his termination
becoming effective May 8, 2009. (Id. ¶ 98.)
As with Cox and Martinez, Dufton and
plaintiff’s job titles were eliminated, and no
replacements were hired. (Id. ¶¶ 98-99.)

6. The April 8, 2009 Meeting
The April 8, 2009 meeting was a tech
team meeting that was attended in-person, at
Ustrive2’s Arizona offices, and by
conference call for remote employees,
including Martinez and plaintiff. (Id. ¶ 110.)
The meeting featured a PowerPoint slide
presentation that, due to time constraints,
had not been reviewed or approved in
advance by the higher-ups at Ustrive2,
including then-Chief Technology Officer
Dave Pulver (“Pulver”). (Id.) One of the
slides defined the technical term, “Sprint,”
as follows: “Engineering’s menstrual cycle.”
(Id.; see also Def.’s Mot. for Summ. J. Ex.
L.) Further, while presenting the slideshow,
the presenter, Dan Milliron (“Milliron”),
made the corresponding comment that
“Sprint is a 30-day cycle with five days of
anger days in the middle.” (Def.’s 56.1
¶ 110.) Needless to say, not all participants
approved of the slide or Milliron’s language.
In fact, plaintiff stopped the meeting in order
to express her disapproval of both the slide’s
content and Milliron’s corresponding
commentary. (Id.)

Plaintiff, like Martinez, also had
submitted an internal complaint regarding a
meeting that took place on April 8, 2009.
(Id. ¶¶ 103-04.) As the above facts indicate,
the April 8 meeting occurred after
Ustrive2’s identification of plaintiff for
termination (March 23), but before her
actual formal lay-off (April 24). It is this
3

In its Rule 56.1 Statement, defendant explains the
reasons behind the time gap in Martinez’s effective
termination: (1) because Martinez lived and worked
in Canada, and the Company wanted to ensure her
termination was in compliance with British
Columbian employment law, and (2) Martinez was
responsible for projects falling outside the
RightNOW division, which needed to be completed
before her exit. (Def.’s 56.1 ¶ 86.)

Both plaintiff and Martinez submitted
complaints concerning the slide show
presentation, which HR Consultant Utagawa
turned to for investigation and resolution
6

Ustrive2 eventually filed for Chapter 11
bankruptcy on October 16, 2009 in the
United States Bankruptcy Court for the
District of Arizona. (Id. ¶ 127.) On January
19, 2010, Ustrive2’s Board of Directors
approved a dissolution of the corporation,
with Ustrive2’s officers and shareholders
agreeing to the same on February 15, 2010.
(Id. ¶¶ 129-30.) Ustrive2’s endeavors ended
in or about March 2010, when the
company’s dissolution officially took effect.
(Id. ¶ 130.)

that same day. (Id. ¶¶ 108-10.) On speaking
with Pulver, he acknowledged that both the
slide and Milliron’s use of terminology
reflected poor judgment, and he confirmed
that Milliron had taken the appropriate steps
to apologize. (Id. ¶ 111.) Pulver assured
Utagawa that he would follow up with
Milliron in order to ensure that such conduct
did not repeat itself in the future. (Id.) The
slide with the offending language also was
removed from the PowerPoint presentation,
with a replacement slide issued and created
for distribution. (Id.)

8. Opting Against Stock Options
Ultimately, Utagawa concluded that the
inappropriate conduct concerning the slide
was an isolated incident, and that it was not
intentionally targeted at anyone. (Id. ¶ 112.)
At deposition, plaintiff testified that she did
not contact Utagawa again regarding the
incident, and that she did not hear of another
presentation of that or a similar nature
taking place again. (Id. ¶¶ 114-16.)

Plaintiff’s employment agreement with
Ustrive2 indicated that she would be
“eligible to receive 25,000 shares of threeyear vesting employee incentive stock
options, after the initial 90-day transition
period,” and “eligible to receive an
additional 25,000 shares of three-year
vesting employee incentive stock options,
after one complete year of service,” with
“[t]he [specific] number of options [to] be
released [based] on [plaintiff meeting]
milestone objectives.” (Id. ¶ 132 (quoting
Def.’s Mot. for Summ. J. Ex. D).) Plaintiff
was terminated before completing one year
of service at Ustrive2. (Id. ¶ 135.)
Accordingly, she was only entitled to a
maximum of “25,000 shares of three-year
vesting employee incentive stock options,
after the initial 90-day transition period.”
(Id. ¶ 135.) Plaintiff was advised of this fact
on March 31, 2009, via email
correspondence with Urion. (Id. ¶ 135
(citing Def.’s Mot. for Summ. J. Ex. I,
Urion’s Mar. Email Exchange with Pl. re
Stock Options).) Further notices followed.

7. The End of Ustrive2’s Endeavors
Additional RightNow team members
were terminated following plaintiff’s
departure, and Knoll, RightNOW’s founder,
received a significant salary reduction,
culminating in a change of position to that of
independent contractor responsible for
assisting in the winding down of the
company’s business. (Id. ¶¶ 117, 119.)
Knoll’s prior position in RightNOW was
eliminated, and no replacement was hired.
(Id. ¶ 117.) Additional Ustrive2 employees
were affected, with some receiving reduced
salaries, and others being terminated. (Id.
¶ 120.) In essence, Ustrive2 performed a
systematic reduction-in-force in the hopes of
salvaging the Company. (See id. ¶¶ 117127.) Indeed, even Kukowski, the interim
CEO, did not escape the broad sweep of the
termination sheath. (See id. ¶ 128.)

On April 15, 2009, Manley, by letter,
notified plaintiff that Ustrive2’s Board of
Directors had awarded her stock options.
(Id. ¶ 136.) On April 24, 2009, Utagawa, by
email, informed plaintiff that Ustrive2
would provide her with an accelerated
7

briefing schedule. Defendant subsequently
requested extensions of time in which to file
its summary judgment motion, each of
which the Court granted. On December 24,
2012, defendant filed its motion for
summary judgment. Plaintiff filed her
opposition motion (dated January 25, 2013)
on February 7, 2013. Defendant submitted
its reply on February 8, 2013. This matter is
fully submitted and the Court has considered
all of the parties’ submissions.

vesting of her stock options in consideration
for her signing of the separation and release
agreement. (Id. ¶ 137.) On May 19, 2009,
plaintiff received an additional reminder
about her options – Manley sent plaintiff a
letter notifying her that she had 90 days
from the effective date of her termination
(April 24, 2009) to exercise her vested stock
amounts. (Id. ¶ 138.) Plaintiff’s options
vested, but she never exercised them; thus,
the options were canceled. (Id. ¶ 140.)
B.

II.

Procedural History

STANDARD OF REVIEW

The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The movant
“bears the burden of showing that he or she
is entitled to summary judgment.” Huminski
v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005).
“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)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)

On September 28, 2009, plaintiff filed a
claim of gender discrimination and
retaliation against Ustrive2 with the Equal
Employment Opportunity Commission
(“EEOC”). On April 19, 2010, the EEOC
issued to plaintiff a right-to-sue letter;
plaintiff took note and, on July 20, 2010,
commenced the instant action by filing the
complaint.
On October 18, 2010, defendant filed a
motion to dismiss plaintiff’s complaint
pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Plaintiff submitted
her opposition on November 17, 2010, and
defendant filed its reply on November 29,
2010. On September 1, 2011, the Court
granted defendant’s partial motion to
dismiss plaintiff’s complaint in its entirety,
effectively dismissing the following: (1)
plaintiff’s Title VII and NYHRL hostile
work environment claims, and (2) plaintiff’s
state common law claims of fraudulent
misrepresentation
and
fraudulent
inducement, breach of covenant of good
faith and fair dealing, and intentional
infliction of emotional distress. Thereafter,
plaintiff filed her amended complaint on
November 16, 2011, which defendants
answered on December 1, 2011. Defendants
sought leave to file a motion for summary
judgment from the Court, which the Court
granted, setting forth a corresponding
8

III.

(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

DISCUSSION

A.

Retaliation Claim

1.

Legal Standard4

Under Title VII, it is unlawful “for an
employer to discriminate against any of his
employees . . . because [the employee] has
opposed any practice made an unlawful
employment practice by [Title VII].” 42
U.S.C. § 2000e-3(a). The Court evaluates a
Title VII retaliation claim under the threestep, burden-shifting framework used for an
adverse employment claim, as established
by McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). 5 First, a plaintiff must

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986)) (alteration in original).
As the Supreme Court stated in Anderson,
“[i]f the evidence is merely colorable, or is
not significantly probative, summary
judgment may be granted.” Anderson, 477
U.S. at 249-50 (citations omitted). Indeed,
“the mere existence of some alleged factual
dispute between the parties” alone will not
defeat a properly supported motion for
summary judgment. Id. at 24. Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must
set forth “‘concrete particulars’” showing
that a trial is needed. R.G. Group, Inc. v.
Horn & Hardart Co., 751 F.2d 69, 77 (2d
Cir. 1984) (quoting SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir.
1978)). Accordingly, it is insufficient for a
party opposing summary judgment “merely
to assert a conclusion without supplying
supporting arguments or facts.” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at 33)
(internal quotation mark omitted).

4

Subsequent to briefing in this case, the Supreme
Court modified the standard for employment
discrimination claims in University of Texas
Southwestern Med. Ctr. v. Nassar, No. 12-484, 2013
WL 3155234 (June 24, 2013). In this decision, the
Supreme Court set forth a higher standard for
plaintiffs seeking to establish a retaliation claim
under Title VII. Specifically, the Court held that
“Title VII retaliation claims must be proved
according to traditional principles of but-for
causation, not the lessened causation test stated in
§2000e-2(m)” of Title VII. Nassar, 2013 WL
315523, at *14. “This requires proof that the
unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of
the employer.” Id.
As Nassar had not been decided at the time of the
parties’ briefing, the underlying arguments were not
assessed under the Supreme Court’s stricter standard.
Given that the Court concludes that plaintiff’s
retaliation claim fails under the former – and lower –
causation test, the Court need not decide whether
plaintiff’s claim could have survived the Supreme
Court’s newer – and higher – but-for causation test.
In other words, as discussed infra, the Court
concludes that no rational jury could conclude that
plaintiff’s protected activity was a cause for her
termination, no less a but-for cause.
5
“[R]etaliation claims brought under the NYSHRL
are evaluated identically to claims brought under
Title VII.” Maher v. Alliance Mortg. Banking Corp.,
650 F. Supp. 2d 249, 259 (E.D.N.Y. 2009). For this
reason, the Court’s analysis as to plaintiff’s federal

9

to plaintiff to demonstrate by competent
evidence that the reasons proffered by
defendant were pretext for retaliatory
animus based upon the protected Title VII
activity. See Sista v. CDC Ixis N. Am., Inc.,
445 F.3d 161, 169 (2d Cir. 2006).

establish a prima facie case of retaliation by
demonstrating that “(1) the employee was
engaged in protected activity; (2) the
employer was aware of that activity; (3) the
employee suffered an adverse employment
action; and (4) there was a causal connection
between the protected activity and the
adverse employment action.” Gregory v.
Daly, 243 F.3d 687, 700 (2d Cir. 2001)
(quoting Reed v. A.W. Lawrence & Co., 95
F.3d 1170, 1178 (2d Cir. 1996)). The term
“protected activity” refers to action taken to
protest or oppose statutorily prohibited
discrimination. See 42 U.S.C. § 2000e-3; see
also Cruz v. Coach Stores, Inc., 202 F.3d
560, 566 (2d Cir. 2000). Informal as well as
formal complaints constitute protected
activity. See Sumner v. U.S. Postal Serv.,
899 F.2d 203, 209 (2d Cir. 1990). Title VII
protects not only those employees who
opposed employment practices made
unlawful by the statute, but also those who
have a “‘good faith, reasonable belief that
the underlying challenged actions of the
employer violated the law,’” even if those
actions did not. McMenemy v. City of
Rochester, 241 F.3d 279, 283 (2d Cir. 2001)
(quoting Wimmer v. Suffolk Cnty. Police
Dep’t, 176 F.3d 125, 134 (2d Cir. 1999)). In
determining whether a plaintiff has satisfied
this initial burden, the court’s role in
evaluating a summary judgment request is
“to determine only whether proffered
admissible evidence would be sufficient to
permit a rational finder of fact to infer a
retaliatory motive.” Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173 (2d
Cir. 2005).

The Supreme Court has defined an
“adverse employment action” in the Title
VII retaliation context (distinct from and
broader than the standard in the Title VII
discrimination context) to mean an action
that is “materially adverse” and that “well
might have dissuaded a reasonable worker
from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(internal citations omitted). In particular,
“the significance of any given act of
retaliation will often depend upon the
particular circumstances.” Id. at 69.
2.

Application

The Court need not address whether
plaintiff can establish the first three prongs
of her prima facie case because, on review
of the uncontroverted evidence, it is clear
that plaintiff cannot satisfy the fourth prong.
That is, plaintiff cannot show a causal
connection between her protected activity –
i.e., her complaint about the slide incident –
and any adverse action.
A causal connection may be established
“(a) indirectly by showing that the protected
activity
was
followed
closely
by
discriminatory treatment; (b) indirectly
through other evidence such as disparate
treatment of fellow employees who engaged
in similar conduct; or (c) directly through
evidence of retaliatory animus.” Martinez v.
N.Y.C. Dep’t of Educ., No. 04-Civ-2728
(DFE), 2008 WL 2220638, at *12 (S.D.N.Y.
May 27, 2008) (citation and internal
quotation marks omitted); see also Cook v.
CBS, Inc., 47 F. App’x 594, 596 (2d Cir.

The burden then shifts to the defendant
to articulate a legitimate, non-discriminatory
reason for the employment action; if the
employer carries that burden, it shifts back
law retaliation claims will also apply to plaintiff’s
state law retaliation claim.

10

insufficient for establishing indirect
causation because adverse actions began
before plaintiff engaged in protected
activity).

2002); DeCintio v. Westchester Cnty. Med.
Ctr., 821 F.2d 111, 115 (2d Cir. 1987). Even
construing the record in plaintiff’s favor, as
the Court must, plaintiff cannot show any of
the three bases for establishing a causal
connection. The Court addresses each in
turn.

Plaintiff counters that the documents to
which defendant directs the Court’s
attention, allegedly showing that plaintiff
already had been targeted for termination
before the slide incident took place, are not
persuasive because there is no specific
reference to terminating plaintiff. (Pl.’s
Opp’n at 3). However, plaintiff’s argument
overlooks a whole series of uncontroverted
facts in the record. First, it is uncontroverted
– both in the sworn statements and
documentation submitted by defendant –
that in March 2009, the decision to terminate
individuals on the RightNOW team for
financial reasons had already been made,
and that Company officials were in the
process of identifying individuals for
termination. In fact, plaintiff’s own personal
notebook for the period February 17 to April
24, 2009 contains entries, prior to the April
8 meeting, that make abundantly clear that
she was aware that the Company was
terminating people to reduce costs. For
example, an April 7, 2009 entry in plaintiff’s
notebook states, inter alia: “[W]ant burn
rate below $150K per month. They’re
looking at everyone – need to justify
everyone’s existence – Eric [Cox] – Jenny
[Martinez] – Kurt [Collins] going to P/T.”
(Def.’s Mot. for Summ. J. Ex. J.)

To begin with, plaintiff cannot show that
her alleged protected activity of submitting a
complaint was closely followed by
discriminatory
treatment.
Plaintiff’s
essential argument is that, because her
termination occurred approximately sixteen
days after the April 8, 2009 slide-incident
meeting, which she complained about that
same day, her retaliation claim should go
forward. (See (Pl.’s Mem. of Law in Opp’n
to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”)
at 3; see also Def.’s 56.1 ¶ 103 (citing Def.’s
Mot. for Summ. J. Ex. B, Pl. Dep. at 193:5 –
196:4).) However, case law is clear that
where “‘timing is the only basis for a claim
of retaliation, and gradual adverse job
actions began well before the plaintiff had
ever engaged in any protected activity, an
inference of retaliation does not arise.’”
Chamberlin v. Principi, 247 F. App’x 251,
254 (2d Cir. 2007) (quoting Slattery v. Swiss
Reins. Am. Corp., 248 F.3d 87, 95 (2d Cir.
2001)).
Here, the uncontroverted evidence in the
record shows that, although plaintiff first
learned of her termination in April 2009, the
decision to terminate her already had been
set in motion as of March 23, 2009; it was
simply finalized during the April 13, 2009
meeting. (See Def.’s 56.1 ¶¶ 92-101.) Thus,
the alleged adverse job reaction (i.e.,
plaintiff’s termination) “began well before []
plaintiff had [] engaged in any protected
activity,” thereby removing any possible
inference of retaliation. Chamberlin, 247 F.
App’x at 254; see also Zboray v. Wal-Mart
Stores E., L.P., 650 F. Supp. 2d 174, 182 (D.
Conn. 2009) (finding temporal proximity

Second, although plaintiff claims that
Jennifer Martinez was terminated (like
plaintiff) because she complained about the
PowerPoint slide, the documentation
unequivocally shows that the decision to
terminate Martinez was made in March
2009, prior to the April 8 slideshow. For
example, there is an Excel Spreadsheet
created on March 15, 2009, which
designated Martinez and another employee
(Eric Cox) with a “Current Burn” of $0.00
11

because they already had been targeted for
termination at that time. (See Def.’s Mot. for
Summ. J. Ex. G.) Similarly, there is an email
on April 8, 2009, prior to the meeting with
the PowerPoint slide, and before plaintiff or
Martinez had submitted their complaints, in
which the decision to terminate Martinez is
referenced. (See Def.’s Mot. for Summ. J.
Ex. K.) In fact, plaintiff’s personal notebook
contains reference, prior to the April 8, 2009
meeting, to the termination decision
regarding Martinez. (See Def.’s Mot. for
Summ. J. Ex. J.) Third, plaintiff has no
evidence to controvert the sworn statements
from multiple individuals that the decision
was made to eliminate plaintiff’s position
(along with Dufton’s position) on March 23,
2009. In short, the only evidence in the
record shows that the decision to terminate
plaintiff was made on March 23, 2009 (prePowerPoint), but was not announced until
mid-April 2009 (post-PowerPoint). Thus,
there is no inference of retaliation based on
temporal proximity.6

with plaintiff, the record reflects that the
decision to terminate Martinez occurred
before the April 8, 2009 meeting
(specifically, on March 18, 2009 (see id.
¶¶ 72, 76, 79)), and therefore, before any
submission of a complaint on Martinez’s (or
even plaintiff’s) part. For this reason, no
causal connection is shown under this
ground, either.
Third, plaintiff cannot demonstrate a
causal connection directly through evidence
of retaliatory animus. See DeCintio, 821
F.2d at 115. Plaintiff testified that after her
submission of the slide-incident complaint,
she never heard of Milliron making a
presentation of that kind ever again. (See
Def.’s 56.1 ¶ 115 (citing Def’s Mot. for
Summ. J. Ex. B, Pl. Dep. at 249:3-23).)
Further, the record shows that, following
plaintiff
and
Martinez’s
respective
complaints, Utagawa promptly contacted
Pulver, Milliron’s supervisor, about the
incident and advised him to keep the
company informed if anyone were to
perform the same or similar conduct again.
(Def.’s 56.1 ¶ 111.) The uncontroverted
evidence also shows that the offensive slide
was removed from the PowerPoint
presentation and replaced with a nonoffensive-language slide. (Id.) Thus, the
uncontroverted evidence is that plaintiff and
Martinez’s complaints were taken heed of,
and that the matter was properly handled by
the Company. Moreover, plaintiff does not
allege that Kukowski, Manley, Urion,
Utagawa, or any of the other higher ups at
Ustrive2 engaged in any actions, outside of
plaintiff’s termination, that could be viewed
as reflective of retaliatory animus. (See id.
¶ 116; Def.’s Mot. for Summ. J. Ex. B, P.
Dep at 244:10-245:8. See generally Am.
Compl.)

Second, plaintiff cannot show a causal
connection indirectly by pointing to “other
evidence such as disparate treatment of
fellow employees who engaged in similar
conduct.” DeCintio, 821 F.2d at 115. It is
true that co-worker Martinez also submitted
a complaint concerning the slide incident,
and also was terminated in the same
timeframe as plaintiff. (See Def.’s 56.1
¶¶ 76-91.) However, this uncontroverted
evidence is insufficient for purposes of
establishing a causal connection because, as
6

As discussed infra, even if temporal proximity
could be established, the claim would still fail
because plaintiff has no other evidence to challenge
defendant’s articulated, non-discriminatory reason for
the termination – namely, a systematic reduction-inforce that began with the RightNow team, and then
spread company-wide until Ustrive2 filed for
bankruptcy in October 2009 and subsequently
dissolved in March 2010.

Additionally, plaintiff made certain
concessions during her deposition that
undermine her argument that Ustrive2’s
12

force – prior to the April 8, 2009 slide
incident and subsequent complaint. (See
Def.’s 56.1 ¶¶ 52-107, 117-130.)

reasons for terminating plaintiff were
motivated by a discriminatory animus. For
instance, plaintiff testified that the ondemand media industry, in which she
previously had worked at Protocol and
which she focused on developing at
Ustrive2, was a model that both originated
and became defunct in the course of a ten
year or so period, and which was well on the
decline at the time of plaintiff’s termination.
(See Def.’s 56.1 ¶ 9; see also Def.’s Mot. for
Summ. J. Ex. B, Pl. Dep. at 86:13-24.)
Plaintiff also acknowledged that as of 2009,
Ustrive2 was experiencing financial troubles
and that various employees, not just
plaintiff, were being laid-off or reduced to a
part-time status. (Def.’s 56.1 ¶¶ 68-69
(citing Def.’s Mot. for Summ. J. Ex. B, Pl.
Dep., at 399:22 – 400:6, 404:14 – 405:24,
421:12 – 428:18).) Further, plaintiff
admitted that she was not a part of any of the
discussions with the decision-making
authorities at Ustrive2 regarding potential
terminations, nor did she have any
knowledge of Ustrive2’s plans regarding
RightNOW or its other divisions. (Id. ¶ 73
(citing Def.’s Mot. for Summ. J. Ex. B, Pl.
Dep. 201:14 – 202:3, 250:2-23).)

In short, plaintiff cannot establish a
causal connection, whether directly or
indirectly, between her protected activity of
submitting a complaint concerning the slide
incident and the alleged retaliatory act of her
subsequent termination.
Even if plaintiff could establish such
causality, however, her retaliation claim still
fails because defendant has established a
legitimate, nondiscriminatory reason for
terminating plaintiff. In other words,
plaintiff cannot show that the decision to
terminate her was pretextual. As discussed
infra,
the
uncontroverted
evidence
establishes that plaintiff was an at-will
employee at Ustrive2. As such, she could
have been terminated for any reason or for
no reason at all, provided that such
termination was not based on discrimination.
See Nix v. WLCY Radio/Rahall Commc’ns,
738 F.2d 1181, 1187 (11th Cir. 1987)
(stating that an “employer may fire an
employee for a good reason, a bad reason, a
reason based on erroneous facts, or for no
reason at all, as long as its action is not for a
discriminatory reason”). Moreover, courts
have recognized that an employer’s general
reduction in workforce may be a factor
supporting a legitimate, non-discriminatory
reason for an employee’s termination. See,
e.g., Maresco v. Evans Chemetics, 964 F.2d
106, 111 (2d Cir. 1992) (noting that a
“reduction-in-force and reorganization of
staff
constitutes
a
legitimate
nondiscriminatory reason for employment
related decisions” (internal citation and
quotation marks omitted)); Moccio v.
Cornell Univ., 889 F. Supp. 2d 539, 591
(S.D.N.Y. 2012) (concluding that defendants
had
provided
a
legitimate,
nondiscriminatory reason for plaintiff’s
termination where evidence showed that

In sum, plaintiff conceded that Ustrive2
was financially unstable around the time of
her (and others’) termination, that she was
not privy to the discussions during which the
financial future of Ustrive2 (as well as that
of its employees) was debated, and
therefore, had no knowledge surrounding the
circumstances of the near company-wide
layoffs, that the industry in which she
specialized was well on its way to becoming
obsolete at the time of her termination, and
that she was not the only individual whom
Ustrive2 terminated at the time of her layoff. Moreover, the uncontroverted evidence
shows that discussions already were
underway
regarding
plaintiff’s
and
Martinez’s respective terminations – part
and parcel of a company-wide reduction-in13

evidence of pretext. . . . .”); accord Simpson
v. N.Y. State Dep’t of Civil Servs., 166 F.
App’x 499, 502 (2d Cir. 2006) (same).
“‘Indeed, a plaintiff must come forward with
some evidence of pretext in order to raise a
triable issue of fact.’” Mavrommatis v.
Carey Limousine Westchester, Inc., 476 F.
App’x 462, 466 (2d Cir. 2011) (quoting El
Sayed, 627 F.3d at 933). Here, plaintiff does
not even claim to have any evidence, beyond
purported temporal proximity, in support of
plaintiff’s claim that the proffered reason for
her termination was pretextual. Thus, the
retaliation claim cannot survive summary
judgment.

employer terminated plaintiff “not because
of factors particular to her, but as part of a
broader workforce reduction caused by
budgetary constraints which resulted in the
elimination of the entire . . . group, of which
[plaintiff] was a part”). Because the
uncontroverted evidence in the record
reveals a legitimate, nondiscriminatory
reason for plaintiff’s termination, and
because the record does not support the
conclusion that the employer’s decision was
pretextual, the Court concludes that, even if
plaintiff could establish temporal proximity,
her retaliation claim still must fail. See
Moccio, 889 F. Supp. 2d at 539 (granting
motion for summary judgment on plaintiff’s
retaliation claim where evidence in record
showed that plaintiff’s termination was part
of a workforce reduction, and further, that
employer had considered layoffs within
plaintiff’s department group before plaintiff
engaged in protected activity).

*

*

*

In sum, the Court grants summary
judgment to defendant because the
uncontroverted evidence shows that plaintiff
cannot state a prima facie retaliation claim,
and that, even if she could, there is no
evidence from which a rational jury could
conclude that defendant’s reason for
terminating plaintiff was a pretext for
retaliation.

Here, although plaintiff claims she can
demonstrate temporal proximity, she also
concedes that she has no other evidence of
retaliation. (See Def’s Mot. for Summ. J. Ex.
B, Pl. Dep. at 195:23-96:4 (“Q. Is there
anything other than the fact that your
termination came sixteen days after that
meeting and any complaint that you may
have made about that meeting, that serves as
the basis for that [retaliation] claim? A.
No.”).) Thus, even if plaintiff could
establish temporal proximity, her claim
cannot survive summary judgment because
temporal proximity alone is insufficient to
overcome a non-discriminatory reason and
raise a triable issue of fact on pretext. See
El Sayed v. Hilton Hotels Corp., 627 F.3d
931, 933 (2d Cir. 2010) (per curiam) (“The
temporal proximity of events may give rise
to an inference of retaliation for the
purposes of establishing a prima facie case
of retaliation . . . , but without more, such
temporal proximity is insufficient to satisfy
[a plaintiff’s] burden to bring forward some

B.

Breach of Contract Claims7

Plaintiff next raises two breach of
contract claims, asserting that defendant
breached the terms of its contractual
agreement with plaintiff when it (1)
terminated her before she had completed
two years with the company, and (2) failed
to provide her with employee stock options.
(See Am. Compl. ¶¶ 50, 54, 57, 60.) The
Court addresses each claim in turn, first
setting forth the applicable law.

7

The Court notes that, although the federal claim
cannot survive summary judgment, the Court also
addresses the state law claims because there is
diversity of citizenship jurisdiction.

14

1.

reasonably intelligent person who has
examined the context of the entire integrated
agreement and who is cognizant of the
customs, practices, usages and terminology
as generally understood in the particular
trade or business,” Law Debenture Trust Co.
of N.Y. v. Maverick Tube Corp., 595 F.3d
458, 466 (2d Cir. 2010) (citation and
internal quotation mark omitted), in contrast
to an ambiguous contract, present where the
terms of the contract “could suggest more
than one meaning” when viewed via the
same, objective, reasonably-intelligentperson lens, SCW West LLC v. Westport Ins.
Corp., 856 F. Supp. 2d 514, 524 (E.D.N.Y.
2012) (citation and internal quotation marks
omitted); see also JA Apparel Corp. v.
Joseph Abboud, 568 F.3d 390, 396 (2d Cir.
2009) (stating that “‘[a]mbiguity is
determined by looking within the four
corners of the document, not to outside
sources’” (quoting Kass v. Kass, 91 N.Y.2d
554, 566 (2d Dep’t 1998))). Notably,
“[l]anguage whose meaning is otherwise
plain does not become ambiguous merely
because the parties urge different
interpretations in the litigation.” Hunt Ltd. v.
Lifschultz Fast Freight, Inc., 889 F.2d 1274,
1277 (2d Cir. 1982); see also N. Assurance
Co. of Am. v. D’Onofrio Gen. Contractors,
No. 08-CV-00976(SJF)(RER), 2009 WL
1437800, at *4 (E.D.N.Y. May 18, 2009)
(same).

Legal Standard

To establish a breach of contract claim
under New York law, a party must show
“(1) the existence of a contract, (2)
performance by the party seeking recovery,
(3) non-performance by the other party, and
(4) damages attributable to the breach.”
Kapsis v. Am. Home Mortg. Servicing Inc.,
No. 11-CV-4936(JFB)(AKT), 2013 WL
544010, at *18 (E.D.N.Y. Feb. 14, 2013)
(quoting Kramer v. N.Y.C. Bd. of Educ., 715
F. Supp. 2d 335, 356 (E.D.N.Y. 2010)
(internal
quotation
mark
omitted)).
Generally, a court should read a written
contract “as a whole,” interpreting every
part “with reference to the whole” and,
where possible, “as to give effect to its
general purpose.” Adams v. Suozzi, 433 F.3d
220, 228 (2d Cir. 2005) (citation and
internal quotation marks omitted).
Where the language of a contract is clear
or
unambiguous,
“‘words
and
phrases . . . should be given their plain
meaning.’” ReliaStar Life Ins. Co. of N.Y. v.
EMC Nat’l Life Co., 564 F.3d 81, 88 (2d
Cir. 2009) (alteration in original) (quoting
LaSalle Bank Nat’l Ass’n v. Nomura Asset
Capital Corp., 424 F.3d 195, 206 (2d Cir.
2005)). Stated differently, “if a contract is
straightforward . . .,
its
interpretation
presents a question of law for the court to be
made without resort to extrinsic evidence,”
in contrast to where a contract’s meaning is
ambiguous, in which case “the intent of the
parties becomes a matter of inquiry, [and] a
question of fact is presented which cannot
be resolved on a motion for summary
judgment.” LaSalle Bank, 424 F.3d at 205
(quoting Postlewaite v. McGraw-Hill, Inc.,
411 F.3d 63, 67 (2d Cir. 2005) (internal
quotation marks omitted).

With this framework in mind, the Court
turns to each of plaintiff’s breach of contract
claims.
2.
a.

Application

First Breach of Contract Claim:
Employment at Will

Plaintiff claims that defendant breached
its employment agreement with her when it
terminated her less than two years after she
had
started
working
at
Ustrive2.

A contract is unambiguous where its
terms do not “suggest more than one
meaning when viewed objectively by a

15

being an “at will” employee, and where
plaintiff did not deny executing such
documents); see also Melnyk v. Adria Labs,
a Div. of Erbamont Inc., 799 F. Supp. 301,
307-11
(W.D.N.Y.
1992)
(granting
defendant’s motion for summary judgment
on plaintiff’s breach of contract claim where
plaintiff acknowledged that she was an “at
will” employee and where evidence revealed
no contractual limitation on defendant’s
right to discharge plaintiff).

Specifically, plaintiff claims that defendant
wrongly terminated her after only seven
months, even though (as she claims) the
contractual agreement set forth a two year
term of employment. (See Am. Compl.
¶ 57.) Defendant counters that plaintiff’s
employment agreement clearly defines her
employment as “at will,” and that the
uncontroverted evidence in the record
establishes that plaintiff understood the
actual meaning of this phrase, and further,
understood that her employment at Ustrive2
would be as an “at will” employee. (See
Def.’s Mot. for Summ. J. at 10-13.) For the
following reasons, the Court agrees with
defendant.

Additionally, “[i]t is [] settled law in
New York that, absent an agreement
establishing
a
fixed
duration,
an
employment relationship is presumed to be a
hiring at will, terminable at any time by
either party” for any reason or for no reason.
Mycak v. Honeywall, Inc., 953 F.2d 798,
801 (2d Cir. 1992) (citation and internal
quotation marks omitted); see also
Stamelman v. Fleishman-Hillard, Inc., No.
02-Civ-8318(SAS), 2003 WL 21782645, at
*4 (S.D.N.Y. July 3, 2003) (stating that
“[t]he rule that employment is presumed to
be at-will is deeply ingrained in New York
law”); Peterec-Tolino v. Harap, 68 A.D.3d
1083, 1084 (2d Dep’t 2009) (stating that
“New York law has long held that ‘where an
employment is for an indefinite term it is
presumed to be a hiring at will which may
be freely terminated by either party at any
time for any reason or even for no reason’”
(quoting Murphy v. Am. Home Prods. Corp.,
58 N.Y.2d 293, 300 (1st Dep’t 1983))). This
presumption “may be triggered when an
employment agreement fails to state a
definite period of employment, fix []
employment of a definite duration, establish
[] a fixed duration, or is otherwise
indefinite.” Rooney v. Tyson, 91 N.Y.2d
685, 689 (N.Y. App. 1998) (alterations in
original) (internal quotation marks omitted).

At the outset, it is undisputed that
plaintiff signed the Ustrive2 Employment
Agreement, which expressly describes her
employment as “[t]wo years – employment
at will by Ustrive2 Inc.” (See Def.’s Mot. for
Summ. J. Ex. D.) Moreover, a review of the
supporting documentation reveals that, in
her negotiations with Ustrive2, when
plaintiff made certain notations upon the
proposed employment agreement, she
handwrote the phrase “employment at will”
at the top of the document (indicating that
she understood the employment to be as
such), and she did not strike the contract’s
“employment at will” provision, even
though she made notations to have other
sections of the agreement – like the noncompete provision – removed. (See Def.’s
Mot. for Summ. J. Ex. C.) The fact that
plaintiff signed the finalized agreement,
which
both
incorporated
plaintiff’s
requested edits and included this explicitly
stated provision, supports dismissal of
plaintiff’s breach of contract claim. See
Freiman v. JM Motor Holdings NR 125-139,
LLC, 82 A.D.3d 1154, 1155 (2d Dep’t 2011)
(reversing lower court’s denial of
defendants’ motion for summary judgment
where documentary evidence established
plaintiff’s written acknowledgements to

Examining the express language of the
employment agreement, it nowhere states
that plaintiff’s employment shall be for a
16

receive such options after a certain period of
completed time with the Company. (See id.);
cf. TSR Consulting Servs. v. Steinhouse, 267
A.D.2d 25, 27 (1st Dep’t 1999) (denying
summary judgment to employer where
agreement expressly stated that employees
would receive “a guaranteed nonrecoverable draw of $10,000 for [the first
year of employment]” and “[f]or the second
year of [] employment [] a guaranteed
recoverable draw of $120,000,” the
language of which is “consistent with a
hiring for a definite period as opposed to an
employment-at-will” (emphasis added)).

specific or fixed period of time. It simply
states: “[t]wo years – employment at will.”
(Def.’s 56.1 ¶ 26.) Thus, in the absence of
any language establishing a fixed or
otherwise
guaranteed
duration
of
employment, New York’s “at will”
presumption is triggered. See Mycak, 953
F.2d at 801.
Plaintiff argues that the “two years –
employment at will” provision cannot be
read as establishing an “at will” position
because such language is ambiguous. (See
Pl.’s Opp’n at 2.) As a threshold matter, the
Court rejects the notion that the “two year”
provision preceding the “at will” language
may somehow be read to generate ambiguity
as to the “at will” term’s actual meaning.
Reading the provision as a whole and in
context, it is clear that the “two year”
language serves as a reference period during
which time plaintiff’s employment shall be,
as expressly stated, “at will.” It nowhere
represents, however, that plaintiff has a
guaranteed two years of employment with
Ustrive2.

Thus, a review of the four corners of the
Ustrive2 agreement reveals no language
suggesting that plaintiff’s employment was
for a fixed duration or otherwise guaranteed
for a two-year period. This is relevant
because, as previously set forth, under New
York law, where an employment is not
clearly one of fixed duration, it will be
presumed to be at will. See Mycak, 953 F.2d
at 801; Peterec-Tolino, 68 A.D.3d at 1084.
This “at-will presumption [, however,] may
be rebutted with proof that the unfettered
right to terminate the employment has been
limited by express or implied agreement.” In
re Vasu, 129 F. Supp. 2d 113, 117 (D. Conn.
2001) (citing Rooney, 91 N.Y.2d at 692); see
also Wright v. Cayan, 817 F.2d 999, 1003
(2d Cir. 1987) (noting that even if a
contract’s
terms
establish
indefinite
employment, an express limitation on an
employer’s right to terminate the at-will
employee, whether stated in an employer
handbook or the like, will control); Weiner
v. McGraw-Hill, Inc., 57 N.Y.2d 458, 466
(1982) (noting the rebuttable presumption of
at-will employment if no definite term stated
in the contract). Even construing the record
in plaintiff’s favor, it is clear that no express
– or even implied – agreement amongst the
parties that plaintiff’s period of employment
was to be anything but that of “at will,” nor

The other provisions in the agreement
likewise do not contain any such guarantees
as to a fixed period of employment, nor do
they suggest that plaintiff’s employment
should be construed as anything other than
“at will.” For instance, the salary provision
states that plaintiff’s yearly rate is $90,000,
and that this will be pro-rated and paid “bimonthly.” (See Def.’s Mot. for Summ. J. Ex.
D.) The provision does not state that this
salary is “guaranteed,” i.e., payable
regardless of whether plaintiff works a full
year. Similarly, the stock options provision,
addressed in greater detail infra, makes
plaintiff “eligible” to receive stock options
“after the initial 90-day transition period,”
and “after one complete year of service.”
(Id. (emphasis added)) There is no
guarantee, however, that plaintiff will

17

Exs. C & D); and (3) plaintiff’s prior
understanding of “at-will employment” was
consistent with the intended meaning of the
term as stated in the Ustrive2 agreement,
particularly once the non-compete provision
was struck from it, per plaintiff’s request
(compare Def.’s 56.1 ¶¶ 11-14 with id.
¶¶ 36-40). 8 For these reasons, even if the
term “at will employment” may be deemed
ambiguous, extrinsic evidence clearly
reveals the parties’ governing intent, which,
most simply stated, was that both parties be
able to maintain their freedom regarding
plaintiff’s continued employment at
Ustrive2.9

does plaintiff direct the Court to any
evidence showing the same. See Wright, 817
F.2d at 1003-05 (discussing New York case
law in which courts have required evidence
of a restriction – express or implied – on an
employer’s ability to discharge an at-will
employee in order to overcome the at-will
presumption).
Even if the “two years – employment at
will” provision may be deemed ambiguous,
plaintiff still cannot prevail here because the
extrinsic evidence undercuts her position.
See No. Assurance Co. of Am., 2009 WL
1437800, at *2 (stating that where a
contract’s language is ambiguous, the court
may consider extrinsic evidence “in the
search for the contracting parties’ intent”
(quoting Seiden Assoc., Inc. v. ANC
Holdings, Inc., 959 F.2d 425, 429 (2d Cir.
1992)) (internal quotation marks omitted)).
Here, a review of such extrinsic evidence
plainly reveals that both parties intended for
plaintiff’s position to be terminable at will
by either party at any time.

8

Regarding this last point, the Court notes that, in
plaintiff’s deposition testimony, she states that she
requested that the phrase, “two years” be removed
from the provision, “employment at will by Ustrive2
Inc.” (See Def.’s Mot. for Summ. J. Ex. B, Pl. Dep. at
171:3-20, 177:7-23.) However, plaintiff also made
clear that this request was made so as to prevent that
provision from serving as a type of non-compete,
explaining why she also requested that the noncompete clause be stricken from the agreement. (See
id. at 171:21 – 172:13, 337:11 – 339:16, 345:12 –
346:7.) Thus, even if the “two years” language
remaining in the at-will provision, despite plaintiff’s
request, could be deemed as having created a type of
ambiguity, the Court concludes, based on the
uncontroverted evidence in the record, that plaintiff
not only understood the meaning of “at will
employment,” but also, understood her employment
with Ustrive2 to be the same.
9
The Court briefly notes that the cases proffered by
plaintiff in her opposition memorandum in support of
her contention that the Ustrive2 agreement was
ambiguous are readily distinguishable. (See Pl.’s
Opp’n at 2.); see also Perlick v. Tahari, Ltd., 293
A.D.2d 275, 276 (1st Dep’t 2002) (affirming trial
court’s denial of summary judgment to employer
where two of employer’s writings created ambiguity
as to the terms of plaintiff’s employment, as there
was both a “1997 Deal” and a “1998 Deal,” with “[a]
guaranteed Draw against Commission . . . to be paid
quarterly in the last pay period of each quarter,”
making it unclear as to whether plaintiff was
employed at will or for two one-year periods); TSR
Consulting, 267 A.D.2d at 27 (affirming denial of
summary judgment to employer where agreement

Specifically, a review of plaintiff’s
deposition testimony establishes the
following: (1) before plaintiff entered into
negotiations with Lyons regarding the terms
and conditions of her possible employment
at Ustrive2, plaintiff was not only familiar
with the term, “at-will employment,” but
clearly understood its meaning, as she was
an at-will employee at her prior employment
with Protocol (see Def.’s 56.1 ¶¶ 11-14, 24
(citing Def.’s Mot. for Summ. J. Ex. B, Pl.
Dep., at 87:24 – 88:13, 88:19-22, 170:9-15,
342:13 – 343:15, 343:16-6, 344:7-19,
347:14-23, 378:4-16, 379:4-9)); (2) plaintiff
and Lyons engaged in negotiations
regarding the terms of plaintiff’s
employment, including making plaintiff’s
requested changes to the terms, conditions,
and even title of her employment (see id.
¶¶ 18-40; see also Def.’s Mot. for Summ. J.

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Thus, because the uncontroverted
evidence in the record demonstrates that
plaintiff was an at-will employee for
Ustrive2, and no rational jury could
conclude otherwise, the Court grants
summary judgment to defendant on
plaintiff’s first contract claim.
b.

stock options, after the initial 90-day
transition period,” as well as “an additional
25,000 shares of three-year vesting
employee incentive stock options, after one
complete year of service,” with “[t]he
[particular] number of options [to] be
released [based] on [plaintiff’s meeting
certain agreed upon] milestone objectives.”
(See Def.’s Mot. for Summ. J. Ex. D.) At her
deposition, plaintiff testified as to her
understanding of her stock-option eligibility,
confirming that (1) she realized she would
not be able to acquire the stock options free
of charge, but rather, would have the
opportunity to acquire them upon payment
of money based on the stock value at that
point in time (see Def.’s Mot. for Summ. J.
Ex. B at 349:19 – 350:19), and (2) none of
the stock options that plaintiff acquired
during the course of her employment would
vest until three years after she had earned
them, i.e., she could not cash in on the
options until three years after she had
acquired them (see id. at 186:17 – 189:22).
Thus, plaintiff’s testimony establishes that
plaintiff understood the terms of her stock
option eligibility.

Second Breach of Contract
Claim: The Stock Options

Plaintiff also asserts that “Ustrive[2]
breached plaintiff’s employment contract by
failing to provide her with any stock options
despite [her] meeting milestone objectives.”
(Am. Compl. ¶ 60.) Defendant disagrees,
arguing that there was no breach because, as
plaintiff acknowledges, Ustrive2 offered her
the opportunity to exercise her stock options
– even offering to accelerate the options’
vesting – which she declined. (See Def.’s
Mot. for Summ. J. at 14; Def.’s Reply at 10.)
The uncontroverted evidence in the
record shows that the executed Ustrive2
employment agreement stated that plaintiff
would be eligible “to receive 25,000 shares
of three-year vesting employee incentive

Second, it is clear from the
uncontroverted evidence in the record that
plaintiff did not complete one year of
service at Ustrive2. (See Def.’s 56.1 ¶ 45
(stating that plaintiff was employed at
Ustrive2 from September 15, 2008 to April
24, 2009).) Therefore, under the express
terms of the Ustrive2 employment
agreement, plaintiff was eligible to receive,
at most, “25,000 shares of three-year vesting
employee incentive stock options, after the
initial 90-day transition period,” with the
exact amount to be released turning upon
whether plaintiff had completed certain
designated (and agreed upon) milestone
objectives. (See Def.’s Mot. for Summ. J.
Ex. B.) A review of the record, however,
shows that plaintiff and Ustrive2 never

provided guarantees, including “a guaranteed nonrecoverable draw of $10,000 [for the first year of
employment] and “a guaranteed recoverable draw of
$120,000” for the second year of employment,
suggesting agreement was for a definite period as
opposed to an employment at will (emphasis added));
Levey v. A. Leventhal & Sons, 231 A.D.2d 877, 877
(4th Dep’t 1996) (affirming trial court’s denial of
employer’s motion for summary judgment where
agreement stated that employee’s weekly salary
“represents a commission guarantee for the next 15 to
18 months . . . and will act as a ‘safety net,’”
generating ambiguity as to whether contract was for a
definite term or simply “at will”). Here, the record
shows only one employment agreement between the
parties, which contained no listed guarantees, and
which explicitly defined plaintiff’s employment as
“at will.” For these reasons, the Court finds plaintiff’s
cited cases inapposite to the circumstances presented
in this case.

19

stock options. (Id. ¶ 137.) Lastly, on May
19, 2009, Manley informed plaintiff that she
had 90 days from the effective date of her
termination (specifically, April 24, 2009) to
exercise her vested stock options. (Id.
¶¶ 138-39.)
Despite
these
multiple
notifications of available stock options –
which even included an opportunity to
receive the options at an accelerated rate –
plaintiff failed to take any action, essentially
choosing not to exercise her vested stock
options. Based on plaintiff’s inaction,
Ustrive2 cancelled plaintiff’s stock options.

agreed upon any milestone objectives.
Specifically, Ustrive2 asserts that no
milestones were ever agreed upon. (See
Def.’s Mot. for Summ. J. at 15.) Notably,
plaintiff does not counter this position, nor
does plaintiff offer any evidence showing
that she satisfied any (unspecified)
milestones. Thus, calculation of the stock
options available to plaintiff remained
undesignated by the parties at the time
plaintiff’s eligibility was to be assessed.
Any potential confusion generated by
the absence of agreed-upon milestones,
however, was corrected when Ustrive2’s
decisionmakers (including Manley, Urion,
and Utagawa) reached out to plaintiff to
resolve any concerns she had regarding her
stock options.

In sum, the contractual agreement
clearly required plaintiff to take action in
order for her to receive her stock options.
Plaintiff’s own testimony confirms that she
understood what she was required to do
should she decide to exercise her stock
options. The uncontroverted evidence in the
record also shows the ample notification that
plaintiff received, informing her of her right
to exercise her stock options. Plaintiff
simply failed to do so. Plaintiff’s decision
not to act where called upon to do so cannot
now be construed as defendant’s breach.
Stated differently, defendant’s decision to
cancel plaintiff’s vested stock options was
not a breach of the agreement, but a
requirement arising from plaintiff’s failure
to take the necessary action on her end.

Indeed, even though no milestones were
ever set by the parties, Ustrive2 still offered
plaintiff the maximum amount of options
available to her, 25,000 shares of three-year
vesting stock, in light of her less-than-oneyear employment status. The record sets
forth the following notifications to plaintiff
concerning her options. On March 31, 2009,
Urion informed plaintiff that she would be
awarded 25,000 shares of three-year vesting
employee stock options at a strike price that
would vest over three years from the date of
plaintiff’s initial employment with Ustrive2
(specifically, September 15, 2008). (See
Def.’s 56.1 ¶ 135.) A month later, on April
15, 2009, Manley advised plaintiff that
Ustrive2’s Board of Directors had agreed to
award plaintiff the stock options according
to the terms of the employment agreement,
i.e., 25,000 shares of three-year vesting
stock options. (Id. ¶ 136.) On April 24,
2009, Utagawa notified plaintiff that, in
consideration for plaintiff’s signing the
separation and release agreement, Ustrive2
would even provide plaintiff with an
accelerated vesting of the three-year vesting

For these reasons, the Court grants
summary judgment to defendant on
plaintiff’s second breach of contract claim.
Ustrive2 cannot be held liable for what
plaintiff simply failed to do.

20

IV.

CONCLUSION

For the reasons set forth herein, the
Court grants defendant’s motion for
summary judgment in full and dismisses
plaintiff’s Amended Complaint in its
entirety. The Clerk of the Court shall enter
judgment accordingly and close the case.
SO ORDERED.

_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: July 10, 2013
Central Islip, NY

***
Plaintiff is proceeding pro se, 22 Lisa
Drive, Dix Hills, NY 11746. Defendant is
represented by Daniel S. Moretti, James M.
Woolsey III, and Robert James Anderson of
Landman Corsi Ballaine & Ford P.C., 120
Broadway, 27th Floor, New York, NY
10271-0079.

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