Green v. Avis Budget Group, Inc. et al

Filing 224

REPORT AND RECOMMENDATIONS re 169 MOTION for Summary Judgment filed by Joe Donnelly, Avis Budget Group, Inc., Christopher Chappell, Sean Bishop, Gary Dempsey, Christopher Neudorf, 184 MOTION for Extension of Time to File MOTI ON to Dismiss filed by Priscilla M. Green. Objections due fourteen days from receipt. DECISION AND ORDER denying 194 Plaintiffs' motion for late filing filed by Priscilla M. Green, and granting 195 Defendants' Cross MOTION to Strike. Signed by Hon. Leslie G. Foschio on 1/4/2017. (SDW) (Copy of Report and Recommendation/Decision and Order mailed to Pro Se Plaintiff)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________________
PRISCILLA M. GREEN,
Plaintiff,
v.
AVIS BUDGET GROUP, INC.,
CHRISTOPHER NEUDORF,
CHRISTOPHER CHAPPELL,
SEAN BISHOP,
GARY DEMPSEY, and
JOE DONNELLY, City Manager,

REPORT
and
RECOMMENDATION
----------------------------DECISION
and
ORDER
11-CV-00269V(F)

Defendants.
______________________________________________
APPEARANCES:

PRISCILLA M. GREEN, Pro Se
615 Main Street, No. 1873
Niagara Falls, New York 14302
HARRIS BEACH PLLC
Attorneys for Defendants
MARNIE E. SMITH,
SCOTT D. PIPER, and
KYLE WILLIAM STURGESS, of Counsel
99 Garnsey Road
Pittsford, New York 14534
JURISDICTION

On October 29, 2014, this action was referred to the undersigned by Honorable
Richard J. Arcara for all pre-trial matters including preparation of a report and
recommendation on dispositive motions.1 The matter is presently before the court on
Defendants’ motion filed July 24, 2015, seeking summary judgment (Dkt. 169), Plaintiff’s
motion filed November 20, 2015, to strike Defendants’ summary judgment motion (Dkt.
184), Plaintiff’s motion filed January 29, 2016, requesting the court to accept untimely1

By Text Ordered entered December 4, 2015 (Dkt. 185), this case was reassigned to Honorable
Lawrence J. Vilardo.

filed exhibits (Dkt. 194), and Defendants’ cross-motion filed February 12, 2016, seeking
to strike Plaintiff’s exhibits untimely-file in opposition to summary judgment (Dkt. 195).2

BACKGROUND
On March 25, 2011, Plaintiff Priscilla M. Green (“Plaintiff” or “Green”), an AfricanAmerican woman, then represented by David J. Seeger, Esq. (“Seeger”), commenced
this action alleging two claims pursuant to 42 U.S.C. § 1981 for race-based employment
discrimination and retaliation, against Defendants Avis Budget Group, Inc. (“Avis”), Avis
City Manager Joe Donnelly (“Donnelly”), Avis Airport Manager Christopher Neudorf
(“Neudorf”), and shift managers Christopher Chappell (“Chappell”), Sean Bishop
(“Bishop”), and Gary Dempsey (“Dempsey”) (together, “Defendants”). On September
19, 2012, Seeger moved to withdraw as Plaintiff’s attorney (Dkt. 25), asserting Plaintiff’s
refusal to sign a HIPAA-complaint authorization form for release of Plaintiff’s health
records, despite Plaintiff having placed her health in issue by alleging physical stress
and emotional distress, had placed Seeger in an untenable position. Following an
October 12, 2012 status conference, Seeger’s motion was granted (Dkt. 27). On
January 3, 2013, Prathima C. Reddy, Esq. (“Reddy”), filed an appearance on Plaintiff’s
behalf. (Dkt. 32).
On March 4, 2013, Plaintiff, then represented by Reddy, moved for leave to file
an amended complaint (Dkt. 39), which was granted on March 6, 2013 (Dkt. 40).
Accordingly, on March 6, 2013, Plaintiff filed the Amended Complaint (Dkt. 41)
2

Although Defendants’ motion for summary judgment is dispositive, whereas Plaintiff’s motions to strike
Defendants’ summary judgment motion and requesting the court accept her exhibits filed after the
deadline for her response opposing Defendants’ summary judgment motion, as well as Defendants’
cross-motion to strike Plaintiff’s motion are nondispositive, all three pending motions are addressed in this
combined Report and Recommendation/Decision and Order in the interest of judicial economy.

2

(“Amended Complaint”), naming the same Defendants, and alleging five claims for relief
including (1) discrimination against all Defendants in violation of 42 U.S.C. § 1981 (“First
Claim”); (2) retaliation against all Defendants in violation of 42 U.S.C. § 1981 (“Second
Claim”); (3) disparate treatment and hostile work environment against Defendant Avis in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et
seq. (“Title VII”), and New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.
(“NYSHRL” or “HRL”) (“Third Claim”); (4) retaliation against Defendant Avis in violation
of Title VII and New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.
(“Fourth Claim”); and (5) discrimination against Defendant Neudorf in violation of
NYSHRL (“Fifth Claim”). Plaintiff’s Second and Fourth Claims alleging retaliation are
based on her assertion that since filing the instant action, Plaintiff has had commissions
she earned for selling upgrades (“upsales” or “upsale commissions”)) stolen from her,
she has been subjected to further harassment by her co-workers, that her employment
was terminated on February 6, 2013. Defendants filed their answer to the Amended
Complaint on March 26, 2013 (Dkt. 42).
On December 11, 2013, Reddy moved for permission to withdraw as Plaintiff’s
attorney (Dkt. 50), citing a breakdown in communication such that the attorney-client
representation was irreconcilable. Following a January 14, 2014 status conference, that
motion was granted. (Dkt. 53). Since then, Plaintiff has proceeded in this matter pro
se.
On July 24, 2015, Defendants filed the instant motion for summary judgment
(Dkt. 169) (“Defendants’ Motion for Summary Judgment”), attaching a notice advising
Plaintiff that failure to respond in opposition to Defendants’ Motion could result in

3

summary judgment being granted in favor of Defendants and dismissal of Plaintiff’s
action (Dkt. 169-1), Defendants’ Statement of Material Facts Not in Dispute (Dkt. 169-2)
(“Defendants’ Statement of Facts”), exhibits 1 through 80 (Dkts. 169-3 through 169-10)
(“Defendants’ Exh(s). __”), the Affidavit of Shaun Bishop in Support of Defendants’
Motion for Summary Judgment (Dkt. 169-11) (“Bishop Affidavit”), the Affidavit of
Christopher Chappell in Support of Defendants’ Motion for Summary Judgment (Dkt.
169-12) (“Chappell Affidavit”), the Affidavit of Gary Dempsey in Support of Defendants’
Motion for Summary Judgment (Dkt. 169-13) (“Dempsey Affidavit”), the Affidavit of
Joseph Donnelly in Support of Defendants’ Motion for Summary Judgment (Dkt. 16914) (“Donnelly Affidavit”), the Affidavit of Dahianara Moran in Support of Defendants’
Motion for Summary Judgment (Dkt. 169-15) (“Moran Affidavit”), the Affidavit of
Kimberly Moussavian in Support of Defendants’ Motion for Summary Judgment (Dkt.
169-16) (“Moussavian Affidavit”), the Affidavit of Christopher Neudorf in Support of
Defendants’ Motion for Summary Judgment (Dkt. 169-17) (“Neudorf Affidavit”), the
Affidavit of Eric Pollack in Support of Defendants’ Motion for Summary Judgment (Dkt.
169-18) (“Pollack Affidavit”), and Defendants’ Memorandum of Law in Support of Motion
for Summary Judgment (Dkt. 169-19) (“Defendants’ Memorandum – Summary
Judgment”). In opposition to Defendants’ Motion, Plaintiff filed on November 4, 2015,
Plaintiff’s Reply to Defendant’s Summary Judgment and Motion to Dismiss Defendant’s
Summary Judgment (Dkt. 180) (“Plaintiff’s Response”). On November 20, 2015,
Plaintiff filed another document entitled Notice of Motion for Extension to Submit
Exhibits to “Reply to Summary Judgment” and Motion to Dismiss Defendants Summary
Judgment (Dkt. 184) (“Plaintiff’s Motion Opposing Summary Judgment”), consisting of a

4

motion for an extension of time to file exhibits, which the court granted by Text Order
entered December 4, 2015 (Dkt. 186), as well as an affirmation by Plaintiff opposing
summary judgment (“Plaintiff’s Affirmation Opposing Summary Judgment”). On January
27, 2016, Defendants filed the Reply Memorandum of Law in Further Support of
Defendants’ Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure
56 (Dkt. 193) (“Defendants’ Reply – Summary Judgment”).
On January 29, 2016, Plaintiff filed a Motion to Accept Exhibits Submitted by the
Plaintiff “To Summary Judgment” [sic] and “Motion to Dismiss Defendants Summary
Judgment” [sic] & Grant an Appeal for an Expidited [sic] Hearing and Trial Date (Dkt.
194) (“Plaintiff’s Motion for Late Filing”), supported by the attached Affirmation of
Plaintiff Priscilla M. Green (“Plaintiff’s Affirmation”), and exhibits 1 through 30 (“Plaintiff’s
Exh(s). __”). On February 12, 2016, Defendants filed a Cross-Motion to Strike Plaintiff’s
January 28, 2016 Submissions (Dkt. 195) (“Defendants’ Cross-Motion to Strike”),
attaching the Attorney Scott D. Piper, Esq., Affirmation in Opposition to Plaintiff’s Motion
and in Support of Cross-Motion to Strike Plaintiff’s January 28, 2016 Submissions (Dkt.
195-1) (“Piper Affirmation”), and Defendants’ Memorandum of Law in Support of CrossMotion to Strike Plaintiff’s January 28, 2016 Submissions and Oppose Plaintiff’s Motion
for Miscellaneous Relief; and/or for an Opportunity to Reply to Plaintiff’s Opposition to
Summary Judgment (Dkt. 195-2) (“Defendants’ Memorandum – Cross-Motion to
Strike”). On March 24, 2016, Defendants filed the Attorney Affirmation of Scott D. Piper,
Esq., in Opposition to Plaintiff’s Motion to Accept Exhibits and for Other Miscellaneous
Relief (Dkt. 197) (“Piper Response Affirmation”). On June 1, 2016, Plaintiff filed
Plaintiff’s Opposition to “Motion to Strike” & “Cross Motion” (Dkt. 208) (“Plaintiff’s

5

Response – Cross-Motion to Strike”), attaching the Affirmation of Plaintiff Priscilla M.
Green (“Plaintiff’s Reply Affirmation”). On June 8, 2016, Defendants filed the Attorney
Scott D. Piper, Esq., Reply Affirmation in Further Support of Cross-Motion to Strike
Plaintiff’s January 28, 2016 Submission (Dkt. 209) (“Piper Reply Affirmation”), attaching
Defendants’ Reply Memorandum of Law in Further Support of Cross-Motion to Strike
Plaintiff’s January 28, 2016 Submissions (Dkt. 209-1) (“Defendants’ Reply - CrossMotion to Strike”). Oral argument was deemed unnecessary.
Based on the following, Defendants’ Motion for Summary Judgment should be
GRANTED; Plaintiff’s Motion Opposing Summary Judgment should be DENIED;
Plaintiff’s Motion for Late Filing is DENIED; Defendants’ Cross-Motion to Strike is
GRANTED.

FACTS3
On May 15, 2007, Plaintiff Priscilla M. Green (“Plaintiff” or “Green”), an AfricanAmerican woman, commenced employment with Defendant Avis Budget Group, Inc. 4
(“Avis” or “the Company”), working as a Rental Sales Agent (“RSA”). As an RSA,
Plaintiff worked at the Company’s sales counter at the Buffalo Niagara International
Airport (“the Buffalo Airport”), in Cheektowaga, New York, assisting customers with their
car rentals. During Plaintiff’s employment with Avis, the Operations Managers5 who
directly supervised Plaintiff’s work at the Buffalo Airport location included Defendants

3

Taken from the pleadings and motion papers filed in this action.
Defendants maintain, Defendants’ Memorandum – Summary Judgment at 1, n. 1, that “Plaintiff was
actually employed by Avis Rent a Car System, LLC, a wholly owned subsidiary of Avis Budget Group,
Inc.” (bold in original).
5
The job title “Shift Manager” was changed to “Operations Manager” during the time period relevant to
this action.
4

6

Christopher Chappell (“Chappell”), Shaun Bishop (“Bishop”), and Gary Dempsey
(“Dempsey”). The Operations Managers reported to Defendant Christopher Neudorf
(“Neudorf”), Avis’s Buffalo Airport location manager, who reported to Defendant Joseph
Donnelly (“Donnelly”), the City Manager for Avis in Buffalo, New York, whose office is
located in an administrative building (“the administrative building”), on the opposite side
of a road6 from the Buffalo Airport location. Defendant Eric Pollack (“Pollack”), was the
Company’s Northeast Area Human Resources Director until 2012, when Pollack
became Director of Labor Relations North America for Avis. Defendant Kimberly
Moussavian (“Moussavian”), was Avis’s Human Resources Manager for New York and
New England Operations, reporting to Pollack, until mid-2012, when Moussavian
became New York Operations Manager and responsibility for Avis’s Buffalo Airport
location was transitioned away from her. Defendant Dahianara Moran (“Moran”),
became Avis’s New England Area Human Resources Manager on July 10, 2012, when
she also began assuming the human resources responsibilities previously handled by
Moussavian for the Buffalo Airport location. On May 15, 2007, during her first week of
employment with Avis, Plaintiff, who was interviewed and hired by Neudorf, signed the
Employee Acknowledgment Form acknowledging receipt of a copy of a manual entitled
“Taking the High Road, Code of Conduct and Business Principles” (“Code of
Conduct”),7 and a copy of Avis’s “Anti-Discrimination/Anti-Harassment Policy” (“AntiHarassment Policy”),8 a formal, written policy prohibiting employees from engaging in
any discrimination, harassment, and retaliation based on, inter alia, race, color, and

6

The road is not further identified.
Donnelly Affidavit ¶ 9; Defendants’ Exh. 9.
8
Donnelly Affidavit Exh. 11.
7

7

national origin. Anti-Harassment Policy at 1-2. A copy of the Anti-Harassment Policy
was also posted on the back wall of Avis’s administrative building.
As an RSA, Plaintiff’s job duties included matching rental vehicles to customers’
needs, suggesting upgrades such as the global navigational satellite system Global
Positioning System (“GPS”), and satellite radio, as well as checking in vehicles upon
their return. Although Plaintiff generally worked at Avis’s sales counter (“the sales
counter”), in the Buffalo Airport, she occasionally worked in the kiosk (“the kiosk”),
located in rental car parking area where Avis’s “preferred” customers were
accommodated. Throughout Plaintiff’s tenure with Avis, 43 RSAs worked for Avis at the
Buffalo Airport location, including five with more seniority than Plaintiff, i.e., Sharlene
Munro (“Munro”), Janice Warner (“Warner”), Patricia Lleras (“Lleras”), Deborah Blask
(“Blask”), and Valerie Stachewicz (“Stachewicz”). All RSAs reported to Operations
Managers.
Throughout her employment with Avis, Plaintiff, rather than speaking with the
relevant manager or co-worker, often addressed routine work issues, including
scheduling requests, vacation requests, sick leave, pay issues, training questions,
customer service issues, and disputes with other co-workers, through detailed handwritten or typed notes, letters and memoranda addressed to and sent by certified mail,
or left in Avis’s office to be found by the relevant manager or coworker. Plaintiff also
made numerous complaints about a myriad of perceived personnel issues she claims to
have encountered with co-workers and managers. Although recounted in great detail in
the papers filed in this action, the court references only the more substantive complaints

8

relevant here, particularly those pertaining to Plaintiff’s rate of pay, scheduling, work
performance and training, and handling of cash transactions.
Pay Rate
Upon commencing employment with Avis, Plaintiff was paid $ 8.50 per hour, less
than the $ 9.00 hourly rate Plaintiff maintains Neudorf promised when extending the job
offer to Plaintiff. After complaining to Pollack in November 2010, that she was paid less
than the $ 9 hour rate newly hired white RSAs were paid, Pollack reviewed a chart of
the hourly wages then being paid to RSAs, showing Plaintiff was then being paid $
10.25 per hour, with three RSAs, including Linda E. Howey (“Howey,” date of hire
(“DOH”) April 26, 2010), Rebecca Roblee (“Roblee,” DOH July 26, 2010), and
Abdullawal Adetunji (“Adetunji,” DOH August 16, 2010), were all paid $ 9 per hour.
Pollack Affirmation ¶ 22, and Defendants’ Exh. 63. The five RSAs with more seniority
than Plaintiff were paid higher hourly wages. Defendants’ Exh. 63. After meeting with
Plaintiff, Pollack determined that although Plaintiff’s hourly pay rate was in accordance
with the standardized pay scale as determined by Avis’s corporate human resources,
and was not set by local management at the Buffalo Airport location, because Avis had
increased the starting hourly rate for new employees since Plaintiff was hired in 2007,
there had been some “wage compression” resulting in a smaller difference in pay
between Plaintiff, with three years of seniority, and a newly hired employee at the
current starting wage of $ 9 per hour as compared to the $ 8.50 hourly rate Plaintiff was
paid as a newly hired employee. To offset some of the wage compression, Pollack
raised Plaintiff’s hourly rate by $ .25 to $ 10.50, retroactive to 2009, with Plaintiff
receiving $ 537 in retroactive pay.

9

Part of Plaintiff’s compensation package included commissions paid for
additional services the RSAs sold customers, such as upgrading the type of vehicle,
and access to GPS and satellite radio. Plaintiff claims she was never properly trained in
“upselling,” but learned the technique by observing other RSAs. Even so, Plaintiff
maintains that often she was not given credit for an upsale, and frequent assignments to
later shifts and to work in Avis’s kiosk deprived her of upselling opportunities.
Scheduling
Avis’s Buffalo Airport location opened every day at 6:00 A.M., and was scheduled
to close at 1:00 A.M., but occasionally remained open later to accommodate customers
on delayed incoming flights. Work hours for RSAs at Avis are assigned based on
seniority and operational needs. Plaintiff’s regularly scheduled days off were Monday
and Tuesday, although when short on staff – a common occurrence during the summer
– RSAs often were required to work six days with one day off. The RSA schedule was
prepared by Lleras, but was not posted until approved by a manager three days prior to
the start of the schedule to allow for the schedule to be adjusted for any personnel
issues. Lleras Statement9 ¶¶ 1-2. Plaintiff only addressed scheduling concerns with
Lleras by written notes after the schedule had been posted. Id. ¶ 2.
While Plaintiff was employed by Avis, five other RSAs had more seniority than
Plaintiff including Munro, (DOH March 1, 1979), Warner (DOH January 26, 1987),
Lleras (DOH December 24, 1988), Blask (DOH April 19, 1991), and Stachewicz (DOH
August 12, 2000). The five RSAs with more seniority than Plaintiff were given
preference as to shift assignments, overtime opportunities, and vacation time. In
addition to having less seniority than the five other RSAs, Plaintiff’s availability to work
9

Defendants’ Exh. 62.

10

was further limited by her own lack of personal transportation after her vehicle broke in
2009, requiring Plaintiff to rely on public transportation from her home in Niagara Falls,
New York, to Avis’s Buffalo Airport location, a route which generally required Plaintiff to
take three buses. Plaintiff’s reliance on public transportation made it impossible for
Plaintiff to work before 8:00 A.M., and because the last bus Plaintiff could take to return
to Niagara Falls left the Buffalo Airport at 11:00 P.M., when Plaintiff was assigned to
work beyond 11:00 P.M., Plaintiff often had no choice but to sleep in the public spaces of
the Buffalo Airport or in Avis’s rental cars if she was unable to arrange for a ride from a
friend. According to Plaintiff, Neudorf sometimes provided Plaintiff with the key to the
administrative building where Plaintiff was able to sleep. Plaintiff’s Dep. Tr. Pt. 1 10 at
71-75. Plaintiff maintains she was often assigned to work the closing shift from 4:00
P.M.

to midnight, to accommodate customers arriving on the last planes which were

scheduled to land around 11:30 P.M., but that she was often required to work later due
to delays in scheduled airplane landings, sometimes as late as 4:00 A.M. Plaintiff further
maintains that when working past midnight, she was often the only RSA on duty, in
violation of Avis’s policy that at least two RSAs be on duty at all times. When working
by herself, Plaintiff sometimes was confronted with situations that required a manager’s
approval, necessitating Plaintiff to call a manager at home, but such calls were never
well-received and were routinely ignored or resulted in anger directed toward Plaintiff.
As Plaintiff’s seniority with Avis increased, Plaintiff worked fewer late or closing shifts
and in 2010 her request not to work the closing shift was accommodated. Plantiff’s
Dep. Tr. Pt. 1 at 77.

10

References to “Plaintiff’s Dep. Tr. Pt. 1” are to the transcript of the first day of Plaintiff’s deposition, i.e.,
November 20, 2013, filed as Defendants’ Exh. 2.

11

When Plaintiff’s father was dying, Plaintiff called in sick on January 14 and 15,
2009. Plaintiff was excused from work for bereavement January 16, 17, and 18, 2009,
followed by her regularly scheduled days off on January 19 and 20, 2009. Plaintiff then
had two weeks of vacation from January 21 through February 3, 2009, which two weeks
included Plaintiff’s regularly scheduled Mondays and Tuesdays off, returning to work on
Wednesday, February 4, 2009. Plaintiff’s requests for the time off were granted by
Neudorf.
According to Plaintiff, over the Labor Day weekend in 2010, she was scheduled
to work 11 days without one day off. Defendants, however, maintain Plaintiff worked
only six days, had Labor Day off, and then worked another 6 days. According to a copy
of the relevant work schedule, filed by Plaintiff, Plaintiff’s Exh. 11, Plaintiff was off
Monday, August 30, 2010, and originally was not scheduled to work Tuesday, August
31, 2010, but signed up to work overtime that day, then worked the next five days, i.e.,
Wednesday through Sunday, September 1 through 5, 2010, was off on Labor Day,
Monday, September 6, 2010, worked an overtime shift on Tuesday, September 7, 2010,
before working the next five days. Plaintiff’s Exh. 11. During the 11 weeks period in
which the Labor Day 2010 weekend fell, Plaintiff worked 82 hours of overtime, mostly
covering late arriving flights, and also covering for employees who took vacation time
and had medical leaves.
Work Performance/Training
Plaintiff maintains “Defendant managers have unfairly criticized Plaintiff’s work
performance.” Amended Complaint ¶ 51. According to Plaintiff, at various times, a
manager asked Plaintiff to step into Avis’s car rental lot where the manager criticized

12

Plaintiff in a loud voice and within hearing range of other employees. Plaintiff further
maintains Defendants attempted to “derail Plaintiff’s career through a combination of
methods” including imposing on Plaintiff a “work plan” that was a pretext for Plaintiff’s
termination, id. ¶ 53, and failing to train Plaintiff in effective upselling strategies, thereby
allowing Caucasian RSAs to reap commissions for upsells performed in Plaintiff’s stead.
Id. ¶¶ 55-57. Plaintiff asserts she later trained herself to effectively upsell, which is
borne out by records maintained by Defendants and on which monthly bonuses are
awarded. Id. ¶ 58.
Plaintiff also maintains that on one occasion when she was scheduled to work
overtime, but became confused because another RSA signed his name indicating he
wanted overtime causing Plaintiff to believe she did not have to work the shift, Neudorf
yelled at Plaintiff for failing to report to work her scheduling shift, telling Plaintiff he had
“just got rid of another African American girl for giving me lip.” Plaintiff’s Dep. Tr. Pt. 1
at 92.
Cash Transactions
On August 15, 2010, Plaintiff prepared a rental agreement (“RA”) for an Avis
customer, with payment to be made by credit card. The customer had agreed to add
full insurance coverage on the rental vehicle for which Plaintiff would receive an “upsell”
commission. After Plaintiff left the sales counter, the customer returned to the sales
counter, requesting to make payment in a combination of cash and credit. Because
Plaintiff was not then at the sales counter, another RSA, Stachewicz, handled the
transaction which required voiding the RA prepared by Plaintiff, and preparing a new
RA. Because the original RA had included the full insurance coverage upsold by

13

Plaintiff, which was also included on the replacement RA prepared by Stachewicz, to
ensure Plaintiff received full credit for the upsell, Stachewicz entered the transaction
under Plaintiff’s RSA identification number (“agent ID number”), entering the cash
payment portion as a pre-payment, but failing to record the cash receipt in the “blue
book” journal maintained for tracking cash receipts. When reconciling the receipts at
the end of her shift, Plaintiff noticed the cash receipt recorded under her agent ID
number, but not recorded in the blue journal, which Plaintiff maintains was “a serious
transgression of policy,” Amended Complaint ¶¶ 63-64, and indicated Plaintiff had
stolen $ 175 cash. Id. ¶ 65. Plaintiff reported the transgression to management and
Avis’s headquarters. Although both Chappell and Bishop explained to Plaintiff that
Stachewicz had entered the replacement RA using – without Plaintiff’s authorization –
Plaintiff’s agent ID number to ensure Plaintiff received credit for the upsale, Plaintiff
maintains such explanation is “preposterous” in light of the “gravity of properly recording
cash transactions,” Amended Complaint ¶ 68, asserting the incident was part of a
scheme to “precipitate” Plaintiff’s discharge. Id. By memorandum dated March 1, 2011,
Chappell confirmed in writing that Plaintiff did not take $ 175 on August 15, 2010, nor
had Plaintiff ever been accused of taking $ 175, and Plaintiff “is, and always has been,
cleared of any wrongdoing concerning this contract.” Chappell Affidavit ¶ 26;
Defendants’ Exh. 79.
Complaints
September 11, 2010 Ethics Hotline Call
On September 11, 2010, Plaintiff called Avis’s Ethics and Compliance Hotline
(“the Hotline”), provided for employees to report workplace-related issues (“Hotline

14

Call”). Plaintiff’s complaints at that time were memorialized by Moussavian in a
memorandum to Donnelly (“Moussavian Memorandum”),11 and included that Plaintiff
was claiming to have been denied training since 2008, yet had been with Avis long
enough as to know how to handle certain transactions without formal training. Plaintiff
claimed to have been scheduled to work 11 straight days without a day off, and to work
at 6:00 A.M. even though Plaintiff, who relies on public transportation, cannot get to the
Buffalo Airport location before 8:00 A.M. Plaintiff also complained that favoritism
exhibited by Neudorf was disruptive to the workplace. Plaintiff asserted that on August
15, 2010, Stachewicz took out $ 175 cash in Green’s name without Green having been
made aware of it. According to Plaintiff, an upsale Plaintiff made to a customer on
September 10, 2010, was changed, without her knowledge, by Neudorf. Plaintiff also
alleged she was often assigned to work in the kiosk where she was not able to do
upsales, thus negatively affecting Plaintiff’s pay. Neither Neudorf nor Donnelly took
Plaintiff’s complaints seriously, and were trying to make Plaintiff’s job difficult. In
investigating Plaintiff’s First Internal Complaint, Moussavian obtained statements from
Neudorf, Bishop, and Chappell.
Neudorf explained that a review of the time and attendance records for all RSAs
for the 11-week period from July 3 to September 15, 2010, showed neither that Plaintiff
worked 11 days without a break, nor that Plaintiff was ever scheduled to work 11
straight days. Neudorf Statement12 at 1. According to Neudorf, the summer scheduling
required two to four shifts of mandatory overtime each week, which was bid by seniority
and, in the absence of sufficient bids, was required to be worked by the RSA with the

11
12

Plaintiff’s Exh. 14; Defendants’ Exh. 56.
Defendants’ Exh. 57.

15

lowest seniority. Id. At that time, Plaintiff was the second lowest in seniority among the
RSAs and, during the 11-week period reviewed by Neudorf, Plaintiff was required to
cover four overtime shifts, but for the seven remaining weeks, Plaintiff worked her
regular schedule, and worked a total of 82 hours overtime, most of which was covering
late arriving flights, and RSAs with both more and less seniority worked more overtime
hours than Plaintiff to cover other RSAs’ vacations and medical leaves. Id. at 1-2.
Neudorf also stated the hours worked in the kiosk are equally split between all the
RSAs, and Plaintiff’s hours in the kiosk have not negatively impacted her sales because
Plaintiff usually has the most transactions and rental days. Id. at 2. With regard to the
September 10, 2010 upsale Plaintiff maintains Neudorf cancelled, Neudorf explained
that when Plaintiff made the upsale, Neudorf was working in the kiosk, and the
customer, upon receiving her vehicle, drove to the kiosk and complained that she did
not realize she was being charged $ 35/day for the upsale, thinking instead the
additional cost was only $ 5/day. Id. When Neudorf checked the RA, he noticed the
customer had not initialed the upsale or the rate and, having no paperwork on which to
rely as proof the customer understood the terms of the upsale, Neudorf changed the
RA, putting the customer in a full-size vehicle at the lower rental rate. Id. According to
Neudorf, had Plaintiff had the customer initial the new, upsale rate, Plaintiff would have
been permitted to keep the commission on the upsale. Id.
Bishop concurred that Plaintiff was not scheduled to work and has never worked
11 straight days and was off on Labor Day, September 6, 2010, when an RSA with
more seniority volunteered to work. Bishop Statement13 ¶ 1. Plaintiff worked six days
both prior to and after Labor Day because she was covering overtime shifts while other
13

Defendants’ Exh. 58.

16

RSAs were on vacation. Id. Bishop explained that he never spoke to Plaintiff regarding
her availability for the 6:00 A.M. shift (“the opening shift”), but that on one particular day
when Plaintiff had been scheduled to work the opening shift, an RSA with more seniority
chose not to work the opening shift, another RSA was scheduled to work the closing
shift the previous night and thus could not work the subsequent opening shift without
violating the requirement that RSAs have eight hours off between shifts, and the
remaining two RSAs were newly hired and not prepared to work the opening or closing
shifts. Id. ¶ 2. Bishop also denied that Plaintiff had ever been accused of taking cash
on August 15, 2010, id. ¶ 3, and that Plaintiff was scheduled to work the same number
of hours in the kiosk as the other RSAs, and had never addressed the issue with
Bishop. Id. ¶ 4.
Chappell agreed with Bishop that Plaintiff was scheduled to work an opening shift
only because no other RSA was available, but that to accommodate Plaintiff’s
transportation needs, Plaintiff was permitted to rent a vehicle from Avis for $ 36,
significantly less than the regular price of $ 100. Chappell Statement14 at 1. Chappell
also concurred that Plaintiff was never accused of taking $ 175 in cash, that the cash
was never reported missing, that both Chappell and Bishop had explained to Plaintiff
that she was not being accused of taking the money, and that the transaction had been
completed by Stachewicz using Plaintiff’s agent ID number only to ensure that Plaintiff
received credit for the upsale which Plaintiff had made on the original RA, and which
was continued on the replacement RA. Id. With regard to the upsale for which Plaintiff
maintains she never received credit, Chappell explained that Plaintiff had upsold a
Cadillac, but the customer did not realize until later, after Plaintiff’s shift ended, that the
14

Defendants’ Exh. 59.

17

upsale would cost $ 25/day15 and decided to return the Cadillac, receiving the full-size
rental vehicle the customer originally intended to rent. Id.
September 30, 2010 Letter
In a four-page letter to Moussavian dated September 30, 2010 (“September 30,
2010 Letter”),16 concerning “Conduct and Business Principles,” Plaintiff raised several of
the same complaints asserted in her Hotline Call, including that on August 15, 2010,
another RSA had made a cash transaction using Plaintiff’s agent ID number, and that
the Shift Manager, Airport Manager, and City Manager had ignored Plaintiff’s complaints
about the violation of Avis’s policy, September 30, 2010 Letter at 1, that the starting pay
for newly hired RSAs was $ 9/hour whereas Plaintiff’s starting pay was $ 8.50/hour, id.,
that Plaintiff had never been adequately trained, id. at 2, Plaintiff frequently found
negative notes in her locker, id., the work schedule was always prepared so as to
benefit other RSAs, id. at 2-3, and that RAs on which Plaintiff had an upsale were
changed without Plaintiff’s knowledge. Id. at 3. Newly asserted complaints included
that Plaintiff was often subjected to humiliating and loud talk by the Airport Manager,
Shift Managers, and City Manager, id., that while working a kiosk shift one unspecified
“Friday,” the Rovers17 failed to efficiently move the rental vehicles, causing a back-up
near the kiosk and making it difficult for Plaintiff to match each customer with the
appropriate vehicle, id., and that in July 2010, the employee meeting usually scheduled
for the first Thursday of each month was canceled and was held on Tuesday, July 13,
2010, without Plaintiff receiving any notice causing Plaintiff to miss the meeting and,

15

Why Chappell asserts the upsale was $ 25/day, whereas Neudorf maintains it was $ 35/day, Neudorf
Statement at 2, is not explained in the record.
16
Defendants’ Exh. 51.
17
A “Rover” is responsible for checking the rented vehicles in and out for the customers.

18

when Plaintiff asked Neudorf to see the minutes of the meeting, Neudorf failed to
provide them. Id. Plaintiff asked Moussavian to have each of Plaintiff’s claims
investigated. Id. at 4.
Termination of Plaintiff’s Employment
On January 17, 2013, Plaintiff assisted a customer, Latora Atcherson
(“Atcherson”), Neudorf Affidavit ¶ 34; Donnelly Affidavit ¶ 53, at the sales counter.
When Atcherson, who was accompanied by her 18-year old daughter, requested to pay
in cash, Plaintiff requested the daughter accompany Plaintiff into the rental office to
witness Plaintiff place the cash into the cash drawer in the safe. Plaintiff maintains she
merely asked Atcherson’s daughter to stand in the doorway to the office and watch
Plaintiff place the cash drawer in the safe, but that Plaintiff did not count any cash or
open the safe in front of the daughter, explaining that Plaintiff made the request only
after the co-workers Plaintiff had previously requested witness Plaintiff placing the cash
drawer in the safe had refused. Plaintiff’s Dep. Tr. Pt. 218 at 132-33, 136-37-41, 143.
Plaintiff maintains that although Avis does not maintain any policy requiring that the
placement of cash in the safe be witnessed, Plaintiff has seen other RSAs do so, id. at
134, 137, and Plaintiff had recently observed another Avis employee, one “Ja’Kee,”
being arrested for money that was supposed to be in Avis’s safe, but was missing. Id.
at 137-38. Atcherson complained, in an e-mail dated January 24, 2013, to Neudorf
(“Atcherson’s Complaint”),19 about Plaintiff’s request to her daughter, explaining her
daughter felt extremely uncomfortable with the request, and that Plaintiff made

18

References to “Plaintiff’s Dep. Tr. Pt. 2” are to the transcript of the second day of Plaintiff’s deposition,
i.e., May 28, 2014, filed as Defendants’ Exh. 3.
19
Defendants’ Exh. 71.

19

numerous personal inquiries of the daughter while in the rental office and away from
Atcherson. Specifically, Atcherson wrote
Hello I’m writing to inform the experience I had with the airport location on Jan.
17, 2013. My daughter was asked by an employee by the name of Priscilla
Green to follow her in the office to watch her open a safe and counted the money
to my daughter before placing it in the safe deposit box. The made my daughter
whom age is 18 feel very uncomfortable. She was asking a lot of personal
information about my daughter. Which also made me feel uncomfortable. I just
wanted to share this information with your office so that you are aware of the
things that occurred on this date. Thank you. [sic]
Atcherson’s Complaint.
Upon receiving Atcherson’s Complaint, Neudorf questioned Plaintiff about the incident
and Plaintiff admitted calling Atcherson’s daughter to the back room to witness Plaintiff
place the cash in the safe, and also admitted she had never previously asked anyone to
witness her placing cash in the safe. Neudorf reported the incident to Dahianara Moran
who, in late 2012, had assumed responsibility for Avis’s human resources issues at
numerous locations including, inter alia, at the Buffalo Airport. On January 31, 2013,
Moran suspended Plaintiff with pay and commenced an investigation of the incident
which revealed that Plaintiff’s actions in requesting a customer’s child to accompany her
into Avis’s office, witness Plaintiff count cash, and place the cash into the office safe,
which Plaintiff possibly opened in the child’s presence, were not only not required under
Avis’s protocol, practices, or procedures, but also violated Avis’s cash-handling and
security protocol, placing both Avis and Atcherson’s daughter at risk. Contrary to
Plaintiff’s actions on January 17, 2013, Avis’s protocol only requires an RSA, at the end
of each shift, to place the cash drawer into the safe and complete a document titled
“Cash Reconciliation,” showing how much money is in the drawer when placed in the
safe. The Cash Reconciliation form is required to be signed only by the RSA, and there
20

is no line for any witness signature. By letter to Moran dated February 1, 2013
(“February 1, 2013 Letter”),20 Plaintiff asserted that other non-employees, including
family members and employees of competing car rental agencies, had been permitted
in the office without repercussions. Moran’s investigation, however, showed no
evidence of any non-employee ever being present in the office when cash was being
counted or the safe was open, nor were any of the non-employees strangers such as
customers or children of customers. Finding no merit for Plaintiff’s actions, Moran
recommended to Robert Calderone (“Calderone”), Avis’s Regional Operations Manager
for New England whose approval was required for terminating an employee, that
Plaintiff’s employment be terminated effective February 6, 2013. Calderone agreed
and, by letter dated February 6, 2013 (“termination letter”),21 Moran advised Plaintiff her
employment with Avis was terminated based on Plaintiff’s failure to properly secure
cash, creating a significant security breach and placing Avis’s assets, Plaintiff, and
Plaintiff’s co-workers at risk.

DISCUSSION
1.

Motion for Court to Accept Exhibits and Motion to Strike Late-Filed Exhibits
Although Plaintiff’s response in opposition to summary judgment was originally to

have been filed by September 30, 2015, in a Decision and Order filed October 5, 2015
(Dkt. 179), that deadline was extended to November 4, 2015. Accordingly Plaintiff filed
on November 4, 2015, Plaintiff’s Response in which she also requested, based on an
unspecified “family emergency,” permission to submit exhibits on November 16, 2015.

20
21

Defendants’ Exh. 73.
Defendants’ Exh. 8.

21

Plaintiff’s Response at 6. By letter dated November 15, 2015, and filed November 16,
2015 (Dkt. 181), Plaintiff requested extending the deadline for filing her exhibits to
November 23, 2015, to allow Plaintiff to attend to her child who was having heart
surgery. On November 20, 2015, Plaintiff filed her motion seeking an extension of time
to file her exhibits in opposition to summary judgment, which Defendants, by letter to the
undersigned dated November 20, 2015 (Dkt. 182), opposed unless their time to reply in
further support of summary judgment was also extended. By Text Order entered
November 23, 2015 (Dkt. 183), Plaintiff was given until December 7, 2015, to file her
exhibits, and the deadline for Defendants’ reply was extended to December 21, 2015.
Plaintiff then requested, and was granted, five extensions of time to file her response in
opposition to summary judgment, including Text Order entered December 4, 2015 (Dkt.
186), Text Order entered December 21, 2015 (Dkt. 187), Text Order entered December
23, 2015 (Dkt. 188), Text Order entered December 30, 2015 (Dkt. 189), and Text
Ordered entered January 5, 2016 (Dkt. 192), in which Plaintiff was given until January
11, 2016 to file her exhibits to Plaintiff’s Response opposing summary judgment, with
Defendants’ deadline for filing any reply extended to January 29, 2016. Plaintiff did not
file any exhibits by the January 11, 2016 deadline, however, and on January 27, 2016,
Defendants filed Defendants’ Reply. On January 29, 2016, Plaintiff manually filed a
volume of exhibits with Plaintiff’s Motion for Late Filing, which Defendants, on February
12, 2016, moved to strike. Plaintiff then requested, and received, seven extensions of
time to file her response in opposition to Defendants’ Cross-Motion and in further
support of Plaintiff’s motion, with Plaintiff’s final deadline set at September 13, 2016,
and two subsequent motions seeking further extensions of time denied by the

22

undersigned. See Text Order entered September 14, 2016 (Dkt. 220), and Text Order
entered September 20, 2016 (Dkt. 222). Meanwhile, on June 1, 2016, Plaintiff filed a
document titled “Plaintiff’s Opposition to ‘Motion to Strike’ & ‘Cross Motion,’” but never
filed any reply in further support of Plaintiff’s Motion for Late Filing.
In support of Plaintiff’s Motion for Late Filing, Plaintiff argues for an expedited
hearing regarding the reassignment of this action from Senior District Judge Richard J.
Arcara to District Judge Lawrence J. Vilardo, an expedited trial date, $ 1,000,000 in
punitive damages,22 and for the court to accept Plaintiff’s exhibits filed in opposition to
summary judgment after the deadline for such filing. Plaintiff does not make any
specific argument in support of her request that the court accept her late-filed exhibits,
nor in support of her request for a hearing regarding the reassignment of this action
from one district judge to another, for an expedited trial date, or for the $ 1,000,000 in
punitive damages Plaintiff seeks; rather, Plaintiff argues that each time she was granted
an extension of time to file her exhibits in opposition to summary judgment, Defendants’
deadline for filing their reply was also extended. Plaintiff’s Response – Cross-Motion ¶
13. In support of their Cross-Motion seeking to strike Plaintiff’s Motion for Late Filing,
Defendants maintain that Plaintiff’s late-filed exhibits were filed after Defendants filed
Defendants’ Reply – Summary Judgment, which should have been the last filing with
respect to Defendants’ summary judgment motion, and the court’s consideration of the
late-filed exhibits will be prejudicial to Defendants. Defendants’ Memorandum – CrossMotion to Strike at 5-10. Alternatively, Defendants argue that should the court accept
Plaintiff’s late-filed exhibits, Defendants should be given time to file a further reply to

22

Plaintiff’s request for $ 1,000,000 in punitive damages is also included in her Amended Complaint.
Amended Complaint, Prayer for Relief ¶ B.

23

avoid undue prejudice. Id. at 10-11. Defendants further assert that Plaintiff’s demands
for an expedited hearing and an expedited trial date, have been made multiple times
before, and rejected by the court, as inconsistent with the court’s practice of setting
hearings and trial dates after completing dispositive motion practice, and that the cover
sheet on which Plaintiff asserts her demand for $ 1,000,000 in punitive damages is
intended only for informational purposes and is not a pleading upon which relief can be
granted, let alone there has been no finding of liability against Defendants. Piper
Affirmation ¶¶ 17-20. In further support of Plaintiff’s Motion for Late Filing, Plaintiff
reiterates her requests for an expedited hearing, scheduling of trial, and $ 1,000,000
punitive damages. Plaintiff’s Reply Affirmation ¶¶ 3, 5-6. Defendants, in further support
of Defendants’ Cross-Motion to Strike, assert Plaintiff’s response to Defendants’ CrossMotion to Strike was untimely and should not be considered, Defendants’ Reply –
Cross-Motion to Strike at 2-4, Plaintiff has failed to identify any justifiable reason for her
late submissions or to demonstrate Defendants will not be prejudiced by their
consideration, id. at 5-8, and again requested permission to file a further reply if
Plaintiff’s late-filed submissions are considered. Id. at 9.
With regard to Plaintiff’s request for an expedited hearing and scheduling of trial,
as Defendants assert, Piper Affirmation ¶¶ 17-20, such requests are premature prior to
the resolution of dispositive motion practice. Furthermore, Plaintiff’s request for punitive
damages, which can only be awarded by a jury following trial on the issues, is also not
properly before the court. Accordingly, Plaintiff’s Motion for Late Filing is DENIED as to
these requests.

24

Inasmuch as Plaintiff requests the court accept her admittedly untimely filed
exhibits opposing Defendants’ Motion for Summary Judgment, although “[i]t is well
established that a court is ordinarily obligated to afford a special solicitude to pro se
litigants,” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), Plaintiff’s pro se status
does not absolve her from the obligation to comply with the requirements of court orders
issued. See, e.g., Barclay v. Doe, 207 Fed.Appx. 102, 104 (2d Cir. Dec. 5, 2006)
(“‘while pro se litigants may in general deserve more lenient treatment than those
represent by counsel, all litigants, including pro ses, have an obligation to comply with
court orders. When they flout that obligation they, like all litigants, must suffer the
consequences of their actions.’” (quoting McDonald v. Head Criminal Court Supervisor
Officer, 850 F.2d 121, 124 (2d Cir. 1988)). Even if the court were inclined to consider
Plaintiff’s belatedly-filed exhibits in ruling on Defendants’ Motion for Summary
Judgment, the court’s plain review of said exhibits establishes they are either irrelevant
to Plaintiff’s claims, see, e.g., Plaintiff’s Exh. 2 (including, inter alia, a copy of Plaintiff’s
Associate’s in Applied Science in Business Administration diploma issued by Niagara
County Community College; list of Plaintiff’s goals and aspirations, photographs of
Plaintiff’s church and community children’s choir, a poem authored by Plaintiff, and
photographs of Plaintiff’s family (parents and siblings)), Exh. 7 (including, inter alia, a
portrait of Plaintiff’s parents, Plaintiff’s father’s obituary published in local newspaper, a
copy of a Father’s Day card from Plaintiff to her father), Exh. 22 (copies of birthday
greeting cards and other sentiments from Plaintiff to co-workers), and Exh. 30 (letters
from Avis Chairman and CEO Ronald L. Nelson dated December 4, 2008, and January
8, 2010, to all employees discussing budget concerns and strategy for ensuring Avis’s

25

continued economic success); duplicative of exhibits filed by Defendants, see, e.g., Exh.
22 (February 6, 2013 termination letter, also filed as Defendants’ Exh. 8), illegible, see,
e.g., Exh. 16 (portions of work schedules), Exh. 20 (portions of handwritten notes), Exh.
22 (handwritten note by unidentified author with “Val” written across top of page, and
handwritten note, author unidentified, with “Mtg for D & Chris N. 1/15/08” written at top
of page); or fail to establish any genuine issue of material fact to avoid summary
judgment. See, e.g., Exh. 20 (June 15, 2012 memorandum from Plaintiff to Donnelly
complaining about Plaintiff’s unidentified “Manager being impatient and short tempered”
with Plaintiff, including “publicly taunt[ing] and humiliate[ing]” Plaintiff, “due to some
reason [Plaintiff] is unaware of with him,” but failing to attribute such manager’s alleged
actions to Plaintiff’s race), Exh. 21 (handwritten note “Give Customer F Class car per
Joe Donnelly, Management Favoritism Special Customers,” with no attribution of such
“favoritism” to any race; July 21, 2010 memorandum from Plaintiff to Neudorf
complaining Plaintiff did not receive adequate notice about change in time for monthly
employee meeting, resulting in Plaintiff missing the meeting; and December 3, 2008
letter from Neudorf informing Plaintiff had performed five credit overrides in November
2008, in violation of company policy and advising Plaintiff continued violations would
result in further disciplinary action which could include termination), Exh. 22 (August 6,
2010 memorandum from Plaintiff to Donnelly complaining about scheduling issues, but
not attributing any dispute to racial disparity), Exh. 24 (four-page, single-spaced
memorandum dated September 30, 2010, from Plaintiff to Moussavian making
numerous complaints including the $ 175 cash incident, alleged underpayment of
wages, scheduling, negative notes left in Plaintiff’s locker critiquing Plaintiff’s work,

26

alleged tampering with rental agreements to deprive Plaintiff of credit for upsells,
managers routinely speaking to Plaintiff using loud, humiliating tone of voice, but no
attribution of any such conduct to Plaintiff’s race). Three pages of Plaintiff’s Exh. 26,
further denominated by Bates Stamp DEF000770, DEF000772, and DEF000774, are
type-written statements that appear to capture Plaintiff’s thoughts with respect to her
myriad of complaints regarding her employment with Avis, in which the alleged
egregious conduct is attributed to Plaintiff’s race. Not only is the author of these pages
not identified, but the pages contain no dates, nor is there any indication that any of the
complaints therein were ever shared with any Avis supervisor or manager. 23 Although
in Plaintiff’s Affirmation, Plaintiff argues that some of her exhibits demonstrate racial
disparity, see, e.g., Plaintiff’s Affirmation at 102 (explaining that the third paragraph on
page 2 of Plaintiff’s Exh. 26, December 10, 2010 letter to Pollack, demonstrates that
Caucasian RSAs are scheduled for two to three days off each week to spend time with
their families), nothing within such exhibits is consistent with Plaintiff’s descriptions.
Significantly, absent from all of Plaintiff’s exhibits is any indication that Plaintiff ever
complained of racial discrimination prior to filing her EEOC complaint in September
2012.
Accordingly, Plaintiff’s Motion for Late Filing is DENIED; Defendants’ Motion to
Strike is GRANTED.
2.

Summary Judgment
Defendants seek summary judgment on all of Plaintiff’s claims, and Plaintiff

moves to dismiss Defendants’ Motion for Summary Judgment. Summary judgment of a

23

Plaintiff’s Affirmation accompanying Plaintiff’s Exhibits, although lengthy and quite detailed, is devoid of
any description of these three pages.

27

claim or defense will be granted when a moving party demonstrates that there are no
genuine issues as to any material fact and that a moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Miller v.
Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). The court is required to
construe the evidence in the light most favorable to the non-moving party. Collazo v.
Pagano, 656 F.3d 131, 134 (2d Cir. 2011). The party moving for summary judgment
bears the burden of establishing the nonexistence of any genuine issue of material fact
and if there is any evidence in the record based upon any source from which a
reasonable inference in the non-moving party's favor may be drawn, a moving party
cannot obtain a summary judgment. Celotex, 477 U.S. at 322; see Anderson, 477 U.S.
at 247-48 (“summary judgment will not lie if the dispute about a material fact is
"genuine," that is, if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party”). “A fact is material if it ‘might affect the outcome of the suit under
governing law.’” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting
Anderson, 477 U.S. at 248).
“[T]he evidentiary burdens that the respective parties will bear at trial guide
district courts in their determination of summary judgment motions.” Brady v. Town of
Colchester, 863 F.2d 205, 211 (2d Cir. 1988)). A defendant is entitled to summary
judgment where “‘the plaintiff has failed to come forth with evidence sufficient to permit
a reasonable juror to return a verdict in his or her favor on’” an essential element of a
claim on which the plaintiff bears the burden of proof. In re Omnicom Group, Inc., Sec.
Litig., 597 F.3d 501, 509 (2d Cir. 2010) (quoting Burke v. Jacoby, 981 F.2d 1372, 1379

28

(2d Cir. 1992)). Once a party moving for summary judgment has made a properly
supported showing of the absence of any genuine issue as to all material facts, the
nonmoving party must, to defeat summary judgment, come forward with evidence that
would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes
Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). “[F]actual issues created
solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’
issues for trial.” Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir.
1996). “An issue of fact is genuine and material if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Cross Commerce
Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016) (citing SCR Joint
Venture L.P. v. Warshawsky, 559 F.3d 133,137 (2d Cir. 2009)).
3.

Employment Discrimination
In the instant case, Plaintiff specifically claims violations of Title VII, § 1981,24 and

NYSHRL when Defendants subjected Plaintiff to disparate treatment based on her race,
and a racially hostile work environment, and then retaliated against Plaintiff for
complaining about the alleged disparate treatment and hostile work environment by
stealing her upsale commissions, harassing Plaintiff, and terminating Plaintiff’s
employment.25 Despite some differences in the types of discrimination each prescribes,

24

Employment discrimination claims under § 1981 include both claims of employment discrimination
brought both by employees working under contract and at-will employees. Lauture v. International
Business Machines Corp., 216 F.3d 258, 260-61 (2d Cir. 2000).
25
Defendants do not assert in their answer to the Amended Complaint, nor do Defendants argue in
support of summary judgment, that Plaintiff failed to timely exhaust administrative remedies relevant to
her Title VII claims and, as such, have waived that affirmative defense. See Fowlkes v. Ironworkers Local
40, 790 F.3d 378, 384-85 (2d Cir. 2015) (holding Title VII administrative exhaustion requirement is not a
jurisdictional requirement but, rather, merely a precondition to suit and, thus, if not raised is waived).
Exhaustion of administrative remedies, however, is not a prerequisite to Plaintiff’s § 1981 or NYSHRL
claims. See Ross-Caleb v. City of Rochester, 512 Fed.Appx. 17, 17-18 (2d Cir. Feb. 19, 2013) (NYSHRL
employment discrimination claim “does not require exhaustion of administrative remedies prior to bringing

29

claims of racial discrimination are analyzed “identically under Title VII and § 1981 in
other respects.” Village of Freeport v. Barrella, 814 F.3d 594, 607 (2d Cir. 2016).
Further, “discrimination claims under the [NYS] HRL are evaluated using the same
analytical framework used in Title VII actions.” Lore v. City of Syracuse, 670 F.3d 127,
169 (2d Cir. 2012). Plaintiff’s disparate treatment and retaliation claims are analyzed
pursuant to the burden-shifting test established by McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973) (“McDonnell Douglas”).26 See Vivenzio v. City of Syracuse,
611 F.3d 98, 106 (2d Cir. 2010) (applying McDonnell Douglas burden-shifting
framework to employment discrimination claims brought under Title VII and § 1981
because “[t]he substantive standards applicable to claims of employment discrimination
under Title VII, [ ] are also generally applicable to claims of employment discrimination
brought under § 1981 . . . .”). The McDonnell Douglas burden-shifting analysis “is an
evidentiary standard, not a pleading requirement.” Liebowitz v. Cornell University, 445
F.3d 586, 591 (2d Cir. 2006) (citing Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 410
(2002)). Under the McDonnell Douglas burden-shifting analysis, the plaintiff bears the
initial burden of establishing a prima facie case of employment discrimination, after
which the burden shifts to the employer to establish a legitimate, nondiscriminatory
reason for the adverse employment action, following which the burden shifts back to the
plaintiff to establish such legitimate, non-discriminatory reason was mere pretext for
illegal discrimination. Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). Whether an
action is brought under Title VII, § 1981, or NYSHRL, a plaintiff can meet her burden of

a lawsuit”), and Holt v. Continental Group, Inc., 708 F.2d 87, 89-90 (2d Cir. 1983) (§ 1981 employment
discrimination claim “is not subject to an [administrative] exhaustion requirement.”).
26
As discussed below, Discussion, infra, at 48-50, Plaintiff’s hostile work environment claims are subject
to a different analysis.

30

proof to establish employment discrimination through either direct or circumstantial
evidence. Coward v. Town and Village of Harrison, 665 F.Supp.2d 281, 306 (2d Cir.
2009) (Title VII and § 1981); Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 2001)
(NYSHRL).
A.

Disparate Treatment
1.

Prima Facie Case

To establish a prima facie case of employment discrimination based on disparate
treatment, Plaintiff must demonstrate (1) she belonged to a protected class; (2) she was
qualified for the position she held; (3) she was subjected to an adverse employment
action; and (4) the adverse action occurred under circumstances giving rise to an
inference of discrimination. Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir. 2012) (citing
Ruiz v. County of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010)). In the instant case,
Defendants concede that Plaintiff can establish the first two prongs as an AfricanAmerican who satisfactorily performed her job as an RSA, Defendants’ Memorandum –
Summary Judgment at 4, yet maintain that aside from the termination of her
employment, the employment actions Plaintiff asserts were adverse were not adverse
as a matter of law, or the record is devoid of any evidence that such actions occurred
under circumstances giving rise to an inference of discrimination based on Plaintiff’s
race. Id. In opposition to summary judgment, Plaintiff essentially reiterates her
complaints that Defendants violated Plaintiff’s rights with respect to her employment by
subjecting Plaintiff to racial harassment and a racially hostile work environment,
Plaintiff’s Response at 2-3, including denying Plaintiff leave under the Family Medical

31

Leave Act27 to permit Plaintiff to care for her sick father, unfairly scheduling Plaintiff and
routinely denying Plaintiff requested vacation time, paying Plaintiff a lower wage than
that to which Plaintiff was entitled, intentionally losing Plaintiff’s paycheck rendering
Plaintiff’s financial survival difficult, and wrongfully terminating Plaintiff for the same
conduct in which other Avis employees had engaged without sanctions. Id. at 4-5. In
support of her argument, Plaintiff relies on a case, “People of North Carolina v. Avis
Rent-A-Car,”28 in which, according to Plaintiff, an Avis Rent-A-Car franchisee paid a
settlement of $ 3.3 million for requiring higher credit card limits and more proof of
employment for prospective African-American customers. Id. Plaintiff also maintains
that most of the caselaw on which Defendants rely in support of summary judgment
have been overturned and, as such, are no longer good law supporting Defendants’
Motion for Summary Judgment. Id. at 5-6 and 9-18 (“Defendant’s Table of Authorities
Shepardizing – Negative Treatment”). In further support of summary judgment,
Defendants argue Plaintiff has failed to point to any evidence of a disputed issue of
material fact establishing any adverse employment action or giving rise to any inference
of discrimination. Defendants’ Reply – Summary Judgment, at 2-6.
a.

Adverse Employment Action

“A plaintiff sustains an adverse employment action if he or she endures a
materially adverse change in the terms and conditions of employment.” Brown v. City of
Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). “Examples of a change include
‘termination of employment, a demotion evidenced by a decrease in wage or salary, a

27

Neither in her Complaint nor in the Amended Complaint has Plaintiff alleged any claim under the Family
Medical Leave Act.
28
Plaintiff provides no citation for the case, nor has the court’s research found any case consistent with
Plaintiff’s description of the case emanating from any federal or state court.

32

less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices . . . unique to a particular situation.” Sanders v. N.Y.C.
Human Resources Admin., 361 F.3d 749, 755 (2d Cir. 2004) (quoting Terry v. Ashcroft,
336 F.3d 128, 138 (2d Cir. 2003)). “An adverse employment action is one which is
‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’” Dall
v. St. Catherine of Siena Med. Ctr., 966 F.Supp.2d 167, 176 (E.D.N.Y. 2013) (quoting
Brown, 673 F.3d at 150). In the instant case, although Defendants agree that the
termination of Plaintiff’s employment is an adverse employment action, Defendants
dispute that any other actions of which Plaintiff complains qualifies as adverse as a
matter of law, including receiving verbal and written reprimands and criticism, being
denied a preferred schedule, Plaintiff’s hourly pay rate, and Defendants’ failure to
adequately train Plaintiff for certain job responsibilities. Defendants’ Memorandum –
Summary Judgment at 5-9. Plaintiff offers no substantive argument in opposition to
summary judgment on this point.
With respect to Plaintiff’s assertions that she received excessive scrutiny and
criticism of her work, “‘[c]ourts in this circuit have found that reprimands . . . and
excessive scrutiny do not constitute adverse employment actions in the absence of
other negative results such as a decrease in pay or being placed on probation.’”
Washington v. Securitas Security Services USA, Inc., 2016 WL 6875706, at * 5
(W.D.N.Y. Nov. 22, 2016) (quoting Dauer v. Verizon Communications, Inc., 613
F.Supp.2d 446, 461 (S.D.N.Y. 2009), vacated on other grounds sub nom., Pucino v.
Verizon Wireless Communications, Inc., 618 F.3d 112 (2d Cir. 2010)). Rather, “criticism
of an employee (which is part of training and necessary to allow employees to develop,

33

improve and avoid discipline) is not an adverse employment action.” Weeks v. New
York State Division of Parole, 273 F.3d 76, 86 (2d Cir. 2001) (citing Smart v. Ball State
Univ., 89 F.3d 437, 442-43 (7th Cir. 1996) (plaintiff’s negative job evaluation, without
more, does not establish adverse employment action)), abrogated on other grounds by
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Nor does rudeness,
including being yelled at, constitute an adverse employment action. Missick v. City of
New York, 707 F.Supp.2d 336, 348 n. 5 (E.D.N.Y. 2010) (citing cases). Here, Plaintiff
makes no claim, nor does the record contain any evidence, that the alleged criticism by
Defendants resulted in any negative employment action.
Nor does Defendants’ failure to provide Plaintiff with her desired work schedule,
including scheduling Plaintiff to work fewer closing shifts, not requiring Plaintiff to start
work before 8:00 A.M., giving Plaintiff her preferred days off and always scheduling
Plaintiff for two days off each week, constitute an adverse employment action
supporting an employment discrimination claim. See, e.g., Seale v. Madison County,
929 F.Supp.2d 51, 75 (N.D.N.Y. 2013) (holding an unwanted schedule change does not
constitute an adverse employment action); Nicholls v. Brookdale University Hosp. and
Medical Center, 2005 WL 1521239, at * 31 (E.D.N.Y. June 22, 2005) (holding
unfavorable work schedule, representing diminution in prestige and allowing for fewer
opportunities to rotate between challenging and less challenging work on a regular
basis, did not constitute an adverse employment action), aff’d, 205 Fed.Appx. 858 (2d
Cir. 2006). A work schedule amounts to an adverse employment action for purposes of
establishing disparate treatment only where the schedule change implicates a change in
duties, compensation, or benefits. See, e.g., Feingold v. New York, 366 F.3d 138, 152-

34

53 (2d Cir. 2014) (assignment of “a disproportionately heavy workload” can constitute
an adverse employment action); and Seale, 929 F.Supp.2d at 75 (“The inconvenience
caused by a change in work location and hours, without an accompanying allegation
that such changes amounted to a demotion, is not enough to meet the definition of an
adverse action for purposes of a discrimination claim.”). Here, aside from arguing she
was often given an inconvenient schedule – even a schedule that, because Plaintiff at
times was without reliable transportation, sometimes required Plaintiff to sleep in public
areas of the Buffalo Airport or in unrented Avis vehicles29 – Plaintiff does not assert, nor
point to any evidence, that such scheduling constituted a demotion, required Plaintiff to
perform an inordinate amount of work, or resulted in more job duties, less pay, or fewer
benefits. Insofar as Plaintiff maintains the shifts to which she regularly was assigned
typically offered fewer upsale opportunities than the busier day shifts worked by
Caucasian RSAs, Amended Complaint ¶ 59, Defendants submit evidence that Plaintiff
was often the top RSA is terms of upsales. Neudorf Statement30 at 2 (explaining that
although Plaintiff maintains working in the kiosk hurt her upsales, work in the kiosk is
equally split among all RSAs and Plaintiff “usually is in the top for the most transactions
and rental days”). Significantly, Plaintiff does not challenge the accuracy of this
evidence. Accordingly, none of the scheduling of which Plaintiff complains qualifies as
an adverse employment action.

29

It is not clear from the record how often Plaintiff had to resort to sleeping at the Buffalo Airport – either
in public areas or in unrented Avis vehicles; rather, Plaintiff, who commenced working for Avis on May 15,
2007, explains only that her vehicle broke the day after her father died in January 2009. Plaintiff’s Dep.
Tr. Pt. 1 at 71-72. In 2010, Plaintiff’s schedule was changed to accommodate the bus schedule. Id. at
77. Meanwhile, although Plaintiff did not recall the exact number of times she was forced to remain at the
Buffalo Airport after the closing shift, she estimated it was more than 20 times, while other times she
arranged for a ride from a friend, or stayed at a friend’s home, and that Neudorf sometimes gave Plaintiff
the key to the administrative building where Plaintiff could sleep. Id. at 75-79.
30
Defendaants’ Exh. 57.

35

Insofar as Plaintiff maintains Defendants failed to adequately train her for
effective upselling, Amended Complaint ¶ 57, and with regard to updated company
protocols, id. ¶ 82, “employer-provided training is a benefit under Title VII protection,”
Ani v. IMI Sys., 2002 WL 1888873, at * 6 (S.D.N.Y. Aug. 15, 2002), such that the
“[d]enial of training can constitute an adverse employment action where it bears on
either plaintiff’s opportunity for professional growth and career advancement or directly
on plaintiff’s compensation.” Hill v. Rayboy-Brauestein, 467 F.Supp.2d 336, 352
(S.D.N.Y. 2006) (quotation omitted); see also Little v. NBC, 210 F.Supp.2d 330, 384
(S.D.N.Y. 2002) (noting “denial of training” may constitute an adverse employment
action). In contrast, requiring an employee to attend training generally is not considered
an adverse employment action. See Davis v. Joseph J. Magnolia, Inc., 815 F.Supp.2d
270, 276 (D.D.C. 2011) (requiring plaintiff to attend safety training course not adverse
employment action). In the instant case, not only does Plaintiff fail to specify what
training she maintains she was denied, but Plaintiff also points to no material harm
resulting from any failure to Defendants to properly train Plaintiff. Hill, 467 F.Supp.2d at
352-53 (holding no adverse employment action is established where plaintiff employee
is unable to demonstrate material harm from alleged denial of training). In contrast,
Neudorf described Plaintiff as usually being “in the top” for rentals and upsales.
Neudorf Statement at 2. Accordingly, the record does not establish Plaintiff suffered
any adverse employment action based on a failure to train.
Although Plaintiff’s assertion that she was paid only $ 8.50 per hour, which was
less than the $ 9.00 hourly wage Neudorf promised to pay when Plaintiff was hired, and
less than other newly hired employees were paid, Amended Complaint ¶¶ 24-27, would

36

constitute an adverse employment action, see Bazemore v. Friday, 478 U.S. 385, 39596 (1986) (holding pay disparities between African-American employee and similarly
situated Caucasian employee is basis for Title VII employment discrimination action),
the record is devoid of any evidence establishing that Plaintiff was, in fact, paid less
than other newly-hired RSAs. Rather, as Defendants explain, in November 2010,
Plaintiff complained to Pollack that newly hired RSAs were earning $ 9.00 per hour, in
contrast to the $ 8.50 per hour Plaintiff was paid upon commencing employment with
Avis in 2007. Pollack Affidavit ¶ 20-22. Pollack reviewed the hourly wages then in
effect for RSAs, observing that newly-hired RSAs, who were Caucasian, were paid
$ 9.00 per hour, and Plaintiff was then paid $ 10.25 per hour. Id. Pollack explained to
Plaintiff that since she had been hired three years earlier, the starting hourly wage rate
for RSAs had increased from $ 8.50 to $ 9.00, resulting in some “wage compression.”
Id. ¶ 23. To offset some of the wage compression, Pollack raised Plaintiff’s hourly rate
by $ .25 to $ 10.50, retroactive to 2009, with Plaintiff receiving $ 537 in retroactive pay.
Id. Plaintiff does not dispute the accuracy of this explanation. The record thus is devoid
of any evidence that Plaintiff was actually paid less than other RSAs sufficient to create
a material issue of fact on this allegation requiring trial.
Accordingly, the only adverse employment action suffered by Plaintiff was the
February 6, 2013 termination of her employment, which occurred almost two years after
Plaintiff commenced this action on March 25, 2011, and, as such, logically cannot
support Plaintiff’s disparate treatment claims. Summary judgment should therefore be
GRANTED on Plaintiff’s disparate treatment claims based on Plaintiff’s failure to
establish any adverse employment action.

37

b.

Inference of Discrimination

The court thus considers whether the only adverse employment action alleged by
Plaintiff, i.e., the termination of her employment, occurred under circumstances giving
rise to an inference of unlawful discrimination. The requisite “inference of
discrimination” requires some basis for finding an adverse employment action was
motivated by the plaintiff’s membership in a protected class, as opposed to some lawful
motive, including personal dislike, or poor work performance, although “[d]irect evidence
of discrimination is not necessary . . . . If there is sufficient circumstantial evidence on
which to build a case, it is for the jury to determine what inferences can be drawn from
that evidence.” Lizardo v. Denny’s Inc., 270 F.3d 94, 104 (2d Cir. 2001) (internal
citations omitted). “[A] showing that the employer treated plaintiff less favorably than a
similarly situated employee outside his protected group . . . is a recognized method of
raising an inference of discrimination for purposes of making out a prima facie case.”
Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (internal quotation
omitted). “An employee is similarly situated to co-employees if they were (1) subject to
the same performance evaluation and discipline standards and (2) engaged in
comparable conduct.” Ruiz, 609 F.3d at 493-94 (quotations omitted). “[T]he standards
for comparing conduct requires a reasonably close resemblance to the facts and
circumstances of plaintiff’s and comparator’s cases, rather than a showing that both
cases are identical.’” Id. at 494 (quoting Graham v. Long Island R.R., 230 F.3d 34, 40
(2d Cir. 2000)). “[T]he comparator must be similarly situated to the plaintiff ‘in all
material respects.’” Id. (quoting Shumway v. United Parcel Service, Inc., 118 F.3d 60,
64 (2d Cir. 1997)). “[T]o defeat summary judgment, the plaintiff’s admissible evidence

38

must show circumstances that would be sufficient to permit a rational finder of fact to
infer that the defendant’s employment decision was more likely than not based in whole
or in part on discrimination.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (citing
Stern v. Trustees of Columbia, 131 F.3d 305, 312 (2d Cir. 1997)). In the instant case,
Plaintiff fails to point to any evidence that the asserted adverse employment action,
specifically, the termination of Plaintiff’s employment, occurred under circumstances
giving rise to an inference of racial discrimination.
In particular, Plaintiff points to no Caucasian employees who were not disciplined
for engaging conduct similar to that for which Plaintiff’s employment was terminated,
i.e., the January 17, 2013 incident involving customer Atcherson and her daughter.
Although Plaintiff maintains other employees invited non-employees into Avis’s back
office yet were not terminated, the circumstances under which the invitees were in the
office were not the same as those for which Plaintiff was terminated. In particular, the
few occasions described by Plaintiff, Amended Complaint ¶ 94, involved close family
members and friends – rather than complete strangers such as customers – who
stopped to visit with another employee. Moran Affidavit ¶ 15. Nothing in the record
indicates that company business was conducted in the office in the presence of such
invitees, that the safe was opened, or that any cash was placed in or removed from the
safe during such visits. Id. That the invitees were well-known negates the possibility
that their presence posed any danger to the other Avis employees or to the security of
Avis’s property. Id.
Plaintiff also fails to point to any evidence of racially derogatory comments aside
from a single comment she attributes to Neudorf, Plaintiff’s Dep. Tr. Pt. 1 at 91-93

39

(asserting Neudorf yelled at Plaintiff for missing her shift, stating that he had “just got rid
of another African American girl for giving me lip”), and which Neudorf denies making.
Neudorf Affidavit ¶¶ 58-62. Even if considered, evidence of a single stray remark
generally is insufficient to establish an inference of discrimination. See Carlton v. Mystic
Transp. Inc., 202 F.3d 129, 136 (2d Cir. 2000) (holding plaintiff’s discharge from
employment, accompanied by manager’s comment suggesting the plaintiff should retire,
established inference of age-based discrimination). Significantly, the comment Plaintiff
attributes to Neudorf was not accompanied by any discipline, even though Plainitff
“could have been disciplined for her no-call, no-show on this occasion,” Neudorf
Affidavit ¶ 62, and was completely unrelated to the termination of Plaintiff’s employment.
Nor was Neudorf involved in the determination to terminate Plaintiff’s employment, that
decision having been made by Calderone, upon recommendation of Moran who
investigated the incident. Moran Affidavit ¶¶ 11-15. Thus, no evidence connects
Neudorf’s alleged comment to Plaintiff’s discharge.
Accordingly, Plaintiff cannot make out a prima facie case of employment
discrimination based on disparate treatment in violation of Title VII, § 1981, or NYSHRL,
and summary judgment should be GRANTED in favor of Defendants on these claims.
2.

Legitimate, Nondiscriminatory Reason for Adverse Action

Even assuming, arguendo, Plaintiff is able to establish that the termination of her
employment occurred under circumstances giving rise to an inference of discrimination,
Defendants have articulated a legitimate, nondiscriminatory reason for the action.
Hicks, 593 F.3d at 164. In particular, the record establishes that upon receiving
Atcherson’s Complaint on January 24, 2013, Neudorf asked Plaintiff about the January

40

17, 2013 incident, but Plaintiff gave no credible explanation for requesting the daughter
of a customer to accompany Plaintiff to the back office to witness Plaintiff place cash in
the safe. Neudorf Affidavit ¶¶ 34-35. Neudorf notified Moran of Atcherson’s Complaint,
id. ¶ 36, which Moran investigated, placing Plaintiff on paid leave on January 31, 2013,
pending the investigation’s completion. Moran Affidavit ¶¶ 11-15. Moran’s investigation
revealed that Plaintiff’s actions in requesting a customer’s child to accompany her into
Avis’s back office, witness Plaintiff count cash, and place the cash into the office safe,
which Plaintiff possibly opened in the child’s presence, were not only not required under
Avis’s protocol, practices, or procedures, but also violated Avis’s cash-handling and
security protocol, placing both Avis and Atcherson’s daughter at risk. Id. ¶ 14. Rather,
contrary to Plaintiff’s unexplained actions of January 17, 2013, Avis’s protocol only
requires an RSA, at the end of each shift, to place the cash drawer into the safe and
complete a document titled “Cash Reconciliation,” showing how much money is in the
drawer when placed in the safe, the Cash Reconciliation form is required to be signed
only by the RSA, and there is no line for any witness signature. Id. Although Plaintiff, in
her February 1, 2013 Letter to Moran, asserted that other non-employees, including
family members and employees of competing car rental agencies, had been permitted
in the office without repercussions, Moran’s investigation showed the circumstances of
such situations were markedly different, including that no non-employee was ever
present in the office when cash was being counted or the safe was open, nor were any
of the non-employees strangers such as customers or children of customers. Id. ¶ 15.
In the absence of any merit supporting Plaintiff’s actions, Moran recommended to
Calderone that Plaintiff’s employment be terminated effective February 6, 2013, and

41

Calderone agreed. As such, the record supports that Plaintiff’s employment was
terminated on February 6, 2013 for legitimate, nondiscriminatory reasons, to wit, based
on Plaintiff’s failure to properly secure cash, creating a significant security breach and
placing Avis’s assets, Plaintiff, and Plaintiff’s co-workers at risk. See Speiss v. Xerox
Corp., 481 Fed.Appx. 450, 460-61 (2d Cir. Sept. 25, 2012) (violation of employer’s email policy was legitimate, nondiscriminatory reason for termination of employment);
Panceza v. IBM Corp., 363 Fed.Appx. 128, 131 (2d Cir. Feb. 2, 2010) (plaintiff’s
violation of company policy by accessing sexual materials on internet while at work was
legitimate, nondiscriminatory reason for terminating employment); and Shumway v.
United Parcel Service, Inc., 118 F.3d 60, 65 (2d Cir. 1997) (plaintiff’s flagrant violation of
company policy against fraternization with hourly employees was legitimate,
nondiscriminatory reason for termination of employment).
3.

Pretext to Discrimination

Where the defendant articulates a legitimate, nondiscriminatory reason for its
challenged actions, “the presumption of discrimination is rebutted and it ‘simply drops
out of the picture.’” Connell v. Consolidated Edison Co. of New York, Inc., 109
F.Supp.2d 202, 207 (S.D.N.Y. 2000) (quoting St. Mary’s Honor Center, 509 U.S. at 51011). Then the plaintiff must show, “without the benefit of any presumptions, that more
likely than not the employer’s decision was motivated at least in part by a discriminatory
reason.” Id. (citing Grady v. Affiliated Center, Inc., 130 F.3d 553, 560 (2d Cir. 1997)).
Plaintiff may do this by relying on the evidence already presented to establish a prima
facie case of discrimination, as well as any additional evidence. Id. Further, “because
the fourth prong of the prima facie case in this context is proof of circumstances giving

42

rise to an inference of discrimination, as a practical matter, there is little difference
between the evidence that a plaintiff would present in proving just the prima facie case
and pretext in proving the ‘ultimate fact of discrimination.’” Id. at 208 n. 5.
In the instant case, Plaintiff has utterly failed to argue or to provide any evidence
challenging Defendant’s legitimate and non-discriminatory reasons for terminating
Plaintiff’s employment. Accordingly, Plaintiff has failed to establish the existence of any
issue of fact requiring trial as to whether Defendant’s proffered explanation is mere
pretext for race-based discrimination.
Summary judgment therefore should be GRANTED in favor of Defendant on
Plaintiff’s racially disparate treatment claim.
B.

Retaliation

Plaintiff alleges that since she filed her September 10, 2010 complaint with
Pollack, “she has experienced extensive retaliation including but not limited to having up
sale commissions [ ] stolen from her, and extensive harassment by co-workers.”
Amended Complaint ¶ 80. Plaintiff further maintains she has experienced “further acts
of discrimination and retaliation for filing this lawsuit,” id. ¶ 83, including the termination
of her employment.
As stated, retaliation claims are subject to the McDonnell Douglas burden shifting
analysis, requiring Plaintiff demonstrate a prima facie case of retaliation by establishing
she engaged in protected activity under Title VII or the NYSHRL, that Defendants knew
of the protected activity, that Defendants took an adverse action against Plaintiff, and a
causal connection between the protected activity and the adverse employment action.
Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). See Kirkland v. Cablevision

43

Systems, 760 F.3d 223, 225 (2d Cir. 2014) (“[the plaintiff’s] Title VII race discrimination
and retaliation claims are subject to the McDonnell Douglas burden-shifting analysis.”).
In particular, “[t]o state a prima facie case of retaliation under Title VII, a plaintiff must
proffer evidence that he engaged in a protected activity, such as complaining about race
discrimination, and that his employer took an adverse action in retaliation.” Id. (citing
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)). Upon meeting
this de minimus burden of establishing a prima facie case of retaliation, “a presumption
of retaliation arises,” shifting the burden to the defendants to “articulate a legitimate,
non-retaliatory reason for the adverse employment action.” Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). Nevertheless, the burden of proof
for the causation element is high, requiring the plaintiff “establish his or her protected
activity was a but-for cause of the alleged adverse action by the employer.” University
of Texas Southwestern Medical Center v. Nassar, __ U.S. __; 133 S.Ct. 2517, 2534
(2013). Should Plaintiff meet her burden of establishing a prima facie case of
retaliation, “a presumption of retaliation arises,” shifting the burden to the defendants to
“articulate a legitimate, non-retaliatory reason for the adverse employment action.”
Jute, 420 F.3d at 173. Once Defendants have asserted a neutral reason for the alleged
discriminatory action, “the presumption of retaliation dissipates and the employee must
show that retaliation was a substantial reason for the adverse employment action.” Id.
“‘To make out a prima facie case of retaliation, an employee must show that the
employee was engaged in protected activity; that the employer was aware of that
activity; that the employee suffered adverse employment decisions; and that there was
a causal connection between the protected activity and the adverse employment

44

action.’” Collins v. New York City Transit Authority, 305 F.3d 113, 118 (2d Cir. 2002)
(quoting Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590,
593 (2d Cir. 1988)). Activity that is protected against retaliation includes not only formal
complaints filed with an agency such as the EEOC, or commencing a lawsuit, but also
internal complaints made to management. Raniola v. Bratton, 243 F.3d 610, 624-25 (2d
Cir. 2001) (citing cases). Although “in order to recover for retaliation for having filed
such a complaint, the plaintiff need not prove that her underlying complaint of
discrimination had merit,” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)
(citing cases), it is the plaintiff’s obligation “to clarify to the employer that [s]he is
complaining of unfair treatment due to h[er] membership in a protected class and that
[s]he is not complaining merely of unfair treatment generally.” Lehman v. Bergmann
Associates, Inc., 11 F.Supp.3d 408, 417 (W.D.N.Y. 2014) (quotation omitted; alterations
in original).
Here, with regard to the first element, as Defendants argue, Defendants’
Memorandum – Summary Judgment at 25-26, the only protected activity in which
Plaintiff engaged in connection with the instant action was the filing of the original
Complaint on March 25, 2011. Specifically, Plaintiff’s internal complaints do not
constitute protected activity because they are devoid of any indication that Plaintiff
believed she was being discriminated against based on her race, or based on any other
protected characteristic and, thus, such complaints are not protected. Both in Plaintiff’s
Complaint and Amended Complaint, however, Plaintiff alleges she was discriminated
against in regard to her employment based on Plaintiff’s race, which constitutes
protected activity for purposes of establishing the first element of a prima facie case of

45

retaliation. It is also undisputed that Defendants were aware of such protected activity
as required for the second element of a retaliation claim. Although the withholding of
upsale commissions would constitute an adverse employment action, see Curto v.
Medical World Communications, Inc., 388 F.Supp.2d 101, 113 (E.D.N.Y. 2005) (denying
motion to strike former employee’s allegation of retaliation based on claim that
supervisor and others were wrongfully plotting to steal former employee’s
commissions), Plaintiff points to no evidence that she was actually denied any such
commissions actually earned and, in contrast, Defendants have submitted numerous
affidavits made by persons with personal knowledge, of which Plaintiff has not
challenged the veracity, explaining that Plaintiff was never wrongly denied an earned
commission. See, e.g., Neudorf Affidavit ¶ 22 (explaining he had to redo an RA for a
customer who complained Plaintiff never advised that an upsale to a different vehicle
than the customer had reserved would cost an additional $ 35 per day, and because
Plaintiff failed to have the customer initial the upsale rate on the original RA, Neudorf
was unable to give Plaintiff credit for the upsale); Donnelly Affidavit ¶ 32 (same). See
also Neudorf Statement at 2 (stating Plaintiff usually was the top RSA in terms of rentals
and upsales). Nor do Plaintiff’s vague references to increased harassment by
unspecified co-workers establish an adverse employment action. See Discussion,
supra, at 33. Nevertheless, as discussed in connection with Plaintiff’s disparate
treatment claim, Discussion, supra, at 37-40, the termination of Plaintiff’s employment
constitutes an adverse employment action as required for the prima facie case third
element, leaving only the fourth element, i.e., a causal connection between the
protected activity and the adverse employment action to be established.

46

“‘Title VII retaliation claims must be proved according to traditional principles of
but-for causation,’ which ‘requires proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of the employer.’”
Zann Kwan v. Andalex Group LLC, 737 F.3d 834, 845 (2d Cir. 2013) (quoting Nassar,
133 S.Ct. at 2533). In addition to temporal proximity between the plaintiff’s engaging in
protected activity and the adverse employment action, this higher “but-for” causation
standard may be fulfilled, either at the prima facie stage, or the pretext stage, by
“demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the
employer’s proffered legitimate, nonretaliatory reasons for its action.” Zann Kwan, 737
F.3d at 846 (citing cases).
Here, the almost two-year period between Plaintiff’s commencement of this
action on March 25, 2011, and the termination of her employment on February 6, 2013,
is too long to establish the temporal proximity that would support the requisite causal
connection. See, e.g., Dresssler v. City School District of the City of New York, 2016
WL 4367967, at *4 (S.D.N.Y. Aug. 15, 2016) (18 months too long to establish causal
connection between protected activity and adverse employment action); Spavone v.
Fischer, 2012 WL 360289, at *5 (S.D.N.Y. Feb. 3, 2012) (finding 15 months inadequate
to establish causal connection through temporal proximity); and Crawford v. Braun,
2001 WL 127306, at *6 (S.D.N.Y. Feb. 9, 2001) (holding seven-month lapse too
“attenuated” to establish temporal proximity). Nor has Plaintiff pointed to any
“weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s
proffered legitimate, nonretaliatory reasons for its action.” Zann Kwan, 737 F.3d at 846

47

Moreover, just as Defendant has provided in connection with Plaintiff’s disparate
treatment claim legitimate, nondiscriminatory reasons for terminating Plaintiff’s
employment, see Discussion, supra, at 37-40, which reasons Plaintiff has failed to
demonstrate may be mere pretext for discrimination, such failure also establishes
Plaintiff cannot show the legitimate, nondiscriminatory reasons are mere pretext to
Defendants’ alleged retaliation.
Accordingly, Defendant’s motion for summary judgment should be GRANTED as
to Plaintiff’s retaliation claim.
C.

Hostile Work Environment

Although inartfully pleaded, Plaintiff does allege she was subjected to a hostile
work environment while employed by Avis. Amended Complaint ¶¶ 82, and 111[a]. It is
significant that the criteria for establishing a disparate treatment claim, which employs
the McDonnell Douglas burden shifting analysis, are different than those for a hostile
work environment claim, which does not. See Reynolds v. Barrett, 685 F.3d 193, 202
(2d Cir. 2012) (recognizing distinction between McDonnell Douglas burden-shifting
framework and hostile work environment analysis). See also Nichols v. Volunteers of
America, North Alabama, Inc., 470 Fed.Appx. 757, 766 & n. 1 (11th Cir. Apr. 18, 2012)
(citing cases comparing elements of hostile work environment claim, with discrimination
elements and retaliation elements under McDonnell Douglas). Specifically, to establish
a hostile work environment claim, “‘a plaintiff must produce enough evidence to show
that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.’” Rivera v. Rochester Genesee Regional

48

Transportation Authority, 702 F.3d 685, 693 (2d Cir. 2012) (quoting Gorzynski, 596 F.3d
at 102 (further internal quotation omitted)). “In considering whether a plaintiff has met
this burden, courts should ‘examin[e] the totality of the circumstances, including: the
frequency of the discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with the victim’s [job] performance.” Id. (quoting Hyut v. State University of New York,
352 F.3d 733, 745 (2d Cir. 2003)). “Moreover, the ‘test has objective and subjective
elements: the misconduct shown must be severe or pervasive enough to create an
objectively hostile or abusive work environment, and the victim must also subjectively
perceive that environment to be abusive.’” Id. (quoting Alfano v. Costello, 294 F.3d 365,
374 (2d Cir. 2002)). “Of course, ‘[i]t is axiomatic that mistreatment at work, whether
through subjection to a hostile environment or through [other means], is actionable
under Title VII only when it occurs because of an employee’s . . . protected
characteristic,’ such as race or national origin.” Id. (quoting Brown v. Henderson, 257
F.3d 246, 252 (2d Cir. 2001) (“It is axiomatic that mistreatment at work, whether through
subjection to a hostile environment or through such concrete deprivations as being fired
or being denied a promotion, is actionable under Title VII only when it occurs because
of an employee’s sex, or other protected characteristic.” (citing Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 79-80 (1998)))). As such, in opposing summary
judgment on a hostile work environment claim, the plaintiff must produce evidence “(1)
that the workplace was permeated with discriminatory intimidation that was sufficiently
severe or pervasive to alter the conditions of her work environment, and (2) that a
specific basis exists for imputing the conduct that created the hostile environment to the

49

employer.” Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir.) (internal quotation
omitted), cert. denied, 540 U.S. 1016 (2003).
“Of course, ‘[i]t is axiomatic that mistreatment at work, whether through
subjection to a hostile environment or through [other means], is actionable under Title
VII only when it occurs because of an employee’s . . . protected characteristic,’ such as
race or national origin.” Rivera, 743 F.3d at 20 (quoting Brown v. Henderson, 257 F.3d
246, 252 (2d Cir. 2001) (“It is axiomatic that mistreatment at work, whether through
subjection to a hostile environment or through such concrete deprivations as being fired
or being denied a promotion, is actionable under Title VII only when it occurs because
of an employee’s sex, or other protected characteristic.”)). In the instant case, Plaintiff,
as an African-America, is a member of the protected class of race, and thus has met the
threshold criteria for a hostile work environment claim. Nevertheless, the record
establishes that Plaintiff cannot meet her burden to survive summary judgment as to
any Defendant.
1.

Discriminatory Intimidation in Workplace

With regard to the first criteria, “‘courts examine the case-specific circumstances
in their totality and evaluate the severity, frequency, and degree of the abuse.’” Moll v.
Telesector Resources Group, Inc., 760 F.3d 198, 203 (2d Cir. 2014) (quoting Alfano,
294 F.3d at 374 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993))). “‘Facially
[race-]neutral incidents may be included . . . among the ‘totality of the circumstances’
that courts consider in any hostile work environment claim, so long as a reasonable
fact-finder could conclude that they were, in fact, based on [race].’” Id. (quoting Alfano,
294 F.3d at 378). In the instant case, Plaintiff’s hostile work environment claim rests on

50

a single incident in which Neudorf, while engaged in a somewhat heated exchange with
Plaintiff regarding a scheduling snafu in which Plaintiff, believing another RSA was
scheduled to work, failed to report for her shift, allegedly told Plaintiff he “just got rid of
another African American girl for giving [Neudorf] lip.” Plaintiff’s Dep. Tr. Pt. 1 at 92; see
id. at 92-99. Neudorf denies making the statement, asserting only that he showed
restraint by not disciplining Plaintiff for not reporting for her scheduled shift, and that if
Plaintiff had any question as to whether she was supposed to work at the time in
question, she could have asked either Neudorf or Chappell who was the manager
responsible for preparing the work schedule. Neudorf Affidavit ¶¶ 58-63. Neudorf also
asserts that Plaintiff’s failure to mention the incident prior to her deposition indicates she
has fabricated the claim. Id. ¶ 61.
Regardless of whether Neudorf made the statement as Plaintiff asserts, courts
have routinely found far more egregious incidents insufficient to support a hostile work
environment claim. See, e.g., Craig v. Yale University School of Medicine, 2013 WL
789718, at * 14 (D.Conn. Mar. 4, 2013) (holding harassment and deplorable treatment,
including work pressure, inhospitable treatment, and humiliation, were insufficiently
severe so as to permeate the workplace with discriminatory intent and establish a
hostile work environment). With the exception of the single remark attributed to
Neudorf, Plaintiff’s other allegations regarding her hostile work environment claim are
no more than Plaintiff’s subjective attribution of every difficulty Plaintiff encountered with
her co-workers to Plaintiff’s race. See, e.g., Plaintiff’s Dep. Tr. Pt. 1 at 84-85 (explaining
another RSA, Blask, inquired whether Plaintiff’s hair was all her own and asking to
touch Plaintiff’s hair); id. at 87-90 (describing how on three of four occasions, all the

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RSAs ordered pizza and chicken wings, but the other RSAs ate first while Plaintiff was
working in the kiosk, and when Plaintiff went to eat, the food was picked over and not
appealing); and Plaintiff’s Dep. Tr. Pt. 331 at 326-27, and 424-25 (describing how one
Diane Brown, who is African-American, attempted to provoke an altercation with Plaintiff
by repeatedly slamming the kiosk door). Because these assertions are not supported
by any evidence, they fail to survive summary judgment. See Thompson v. Board of
Trustees Community-Technical Colleges, 2014 WL 2048580, at * 5 (D.Conn. May 19,
2014) (holding plaintiff’s reliance on conclusory and subjective beliefs that his coworkers were engaging in activity intended to create a racially-hostile work environment,
unsupported by any evidence in the record, failed to sustain the plaintiff’s hostile work
environment claim).
Accordingly, the single incident of an inappropriate racial nature in the instant
case, although attributed to a supervisor, even if believed, is insufficient to establish the
requisite discriminatory intimidation in the work place to support a hostile work
environment claim and, on this record, no reasonable juror could find otherwise.
2.

Basis to Impute Offensive Conduct to Employer

Even assuming, arguendo, that Plaintiff successfully pointed to some evidence
that could be construed by a reasonable jury as establishing that she experienced a
hostile work environment, Defendants would not be liable absent “a specific basis [ ] for
imputing the objectionable conduct” to Avis. Alfano, 294 F.3d at 373. “When the
harasser is a supervisor, the employer is presumed to be absolutely liable.” Distasio v.
Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998) (citing Faragher v. City of Boca

31

References to “Plaintiff’s Dep. Tr. Pt. 3” are to the transcript of the third day of Plaintiff’s deposition, i.e.,
September 5, 2014.

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Raton, 524 U.S. 775, 807 (1998)). Accordingly, although Plaintiff admits she never
reported the incident regarding the alleged comment by Neudorf, asserting that she
called Moussavian, but did not leave a message when Moussavian did not answer her
telephone, Plaintiff’s Dep. Tr. Pt. 1 at 95-97, because it is Neudorf, Plaintiff’s supervisor,
who is alleged to have made the racially-offensive comment, the record would support
imputing such comment to Avis. The record thus fails to establish only the first prong of
Plaintiff’s claim that she was subjected to a hostile work environment.
Summary judgment therefore should be GRANTED in favor of Defendants on
Plaintiff’s hostile work environment claim for failure to establish the first prong, i.e.,
discriminatory intimidation in the workplace, but not based on failure to establish the
second prong, namely, a basis for imputing the alleged unlawful conduct to Plaintiff’s
employer.
3.

Faragher/Ellerth Defense

Alternatively, Defendants are entitled to summary judgment on Plaintiff’s hostile
work environment claim based on the Faragher/Ellerth affirmative defense. As stated,
“[b]eyond demonstrating a hostile work environment, a plaintiff must show a basis for
imputing the objectionable conduct to the employer.” Gorzynski, 596 F.3d at 103 (citing
Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)). “When [ ] the alleged harasser is
in a supervisory position over the plaintiff, the objectionable conduct is automatically
imputed to the employer.” Id. (citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
765 (1998); and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)). “But even
then the defending employer may be permitted, subject to proof by a preponderance of

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the evidence, to raise the Faragher/Ellerth affirmative defense to liability or damages.”
Id.
The Faragher/Ellerth defense, named for two cases the Supreme Court decided
the same day, including Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), provides that “an employer is
strictly liable for supervisory harassment that ‘culminates in a tangible employment
action, such as discharge, demotion, or undesirable reassignment.’” Pennsylvania
State Police v. Suders, 542 U.S. 129, 137 (2004) (citing Faragher, 524 U.S. at 765, and
Ellerth, 524 U.S. at 808). See also Ellerth, 524 U.S. at 761 (identifying as tangible
employment actions “hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits”). The
Faragher/Ellerth defense also shields an employer from liability where the employer
maintains an anti-harassment policy with which an employee has failed to demonstrate
compliance.
The Faragher/Ellerth defense consists of two elements providing that even if a
supervisor’s behavior resulted in a tangible employment action against the plaintiff, the
employer will not be liable if (1) “the employer exercised reasonable care to prevent and
correct promptly any [discriminatory] harassing behavior,” and (2) “the plaintiff employee
unreasonably failed to take advantage of any preventative or corrective opportunities
provided by the employer or to avoid harm otherwise.” Gorzynski, 596 F.3d at 103
(quoting Faragher, 524 U.S. at 807). With regard to the first element, the maintenance
of a written anti-harassment policy providing a procedure for an employee who is the
victim of harassment to report the harassment to the Defendant for investigation

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satisfies the first element. See Gorzynski, 59 F.3d at 103-04 (finding employer’s
maintenance of formal, written anti-harassment policy providing procedure for Plaintiff to
report harassment to employer for investigation satisfies first element of
Faragher/Ellerth defense); Ferraro v. Kellwood Co., 440 F.3d 96, 102 (2d Cir. 2006)
(“An employer may demonstrate the exercise of reasonable care, required by the first
element [of the Faragher/Ellerth defense], by showing the existence of an
antiharassment policy during the period of the plaintiff’s employment . . . .”). “With
regard to the second element, “proof that an employee has unreasonably failed to use
the employer’s complaint procedure normally suffices to satisfy the employer’s burden.”
Ferraro, 440 F.3d at 102 (citing Faragher, 524 U.S. at 807; and Ellerth, 524 U.S. at
765).
Here, it is undisputed that Avis provided each newly-hired employee, including
Plaintiff, with a copy of Avis’s Code of Conduct, for which Plaintiff, on May 15, 2007,
signed an acknowledgement of its receipt, as well as a copy of Avis’s Anti-Harassment
Policy,” a formal, written policy prohibiting employees from engaging in any
discrimination, harassment, and retaliation based on, inter alia, race, color, and national
origin. Anti-Harassment Policy at 1-2. A copy of the Anti-Harassment Policy was also
posted on the back wall of the Avis office. Plaintiff’s Dep. Tr. Pt. 3 at 337. The AntiHarassment Policy provides not only that Avis is committed to ensuring all employees
“enjoy a safe, professional, respectful and productive work environment, free from
behavior, actions or language constituting discrimination or harassment,” AntiHarassment Policy at 1, but that Avis also has “zero tolerance” for discrimination or
harassment of any kind including, inter alia, based on race, by any employee. Id. A

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“Complaint Procedure” sets forth the manner in which employees are to report any
discriminatory or harassing behavior, and no employee is to be penalized or
reprimanded for making such a report. Id. at 2. Defendant’s provision of the AntiHarassment Policy satisfies the first Faragher/Ellerth defense element. Significantly,
the record is devoid of any evidence or claim by Plaintiff that Plaintiff made any attempt
to comply with procedures established by Avis’s Code of Conduct and Anti-Harassment
Policy, and Plaintiff neither denies or makes any attempt to explain such failure.
Plaintiff’s failure to follow the prescribed procedure in complaining about the racial
discrimination alleged here establishes Plaintiff failed to meet her burden as to the
second element.
Accordingly, Defendant has also established the absence of any triable issue of
fact demonstrating Plaintiff availed herself of the complaint procedure provided by Avis’s
Code of Conduct and Anti-Harassment Policy, thus warranting summary judgment
based on Defendant’s Faragher/Ellerth defense.
D.

New York State Human Rights Law

“[D]iscrimination claims under the HRL are evaluated using the same analytical
framework used in Title VII actions.” Lore v. City of Syracuse, 670 F.3d 127, 169 (2d
Cir. 2012). Accordingly, for the same reasons Plaintiff’s disparate treatment, retaliation,
and hostile work environment claims fail under Title VII and § 1981, summary judgment
on such claims under NYSHRL should be GRANTED.
Furthermore, Plaintiff asserts her Fifth Claim against only Defendant Neudorf, yet
relief for employment discrimination claims under NYSHRL may be only obtained only
from an employer. Herman v. Blockbuster Entertainment Group, 18 F.Supp.2d 304,

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313-14 (S.D.N.Y. 1998) (considering whether corporate defendant and major
shareholder in plaintiff’s corporate employer exercised sufficient control over plaintiff so
as to be held liable as an employer under NYSHRL), aff’d, 182 F.3d 899 (2d Cir.), cert.
denied, 528 U.S. 1020 (1999).

Accordingly, summary judgment should be GRANTED

on Plaintiff’s fifth claim, asserted under NYSHRL against Defendant Neudorf.

CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Late Filing (Dkt. 194), is DENIED;
Defendants’ Cross-Motion to Strike (Dkt. 195), is GRANTED; Defendants’ Motion for
summary judgment (Dkt. 169), should be GRANTED; Plaintiff’s Motion Opposing
Summary Judgment (Dkt. 184) should be DENIED. The Clerk of the Court should be
directed to close the file.
SO ORDERED, as to Plaintiff’s Motion for
Late Filing (Dkt. 194), and Defendants’
Cross-Motion to Strike (Dkt. 195).
/s/ Leslie G. Foschio

______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Respectfully submitted, as to Defendants’ Motion
for Summary Judgment (Dkt. 169), and Plaintiff’s
Motion Opposing Summary Judgment (Dkt. 184),
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

January 4, 2017
Buffalo, New York

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ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with 28 U.S.C. § 636(b), Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72(b).
ANY APPEAL of this Decision and Order must be taken by filing written
objection with the Clerk of the Court not later than 14 days after service of this Decision
and Order in accordance with 72(a) of the Federal Rules of Civil Procedure, and Local
Rule 72(a).
Failure to file objections or appeal within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys
for the Plaintiff and the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

January 4, 2017
Buffalo, New York

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