NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-1936

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LAKEISHA MCCLAIN; LEONARD MCCLAIN; L&M AGENCY

v.

AVIS RENT A CAR SYSTEM, INC.

L&M Agency,

Appellant

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. No. 2-12-cv-05151)

District Judge: Honorable William H. Walls

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Argued: January 29, 2016

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Before: VANASKIE, SHWARTZ, and RESTREPO, Circuit Judges.

(Filed: April 28, 2016)

Stephen G. Console, Esq.

Rahul Munshi, Esq. [ARGUED]

Console Law Offices LLC

1525 Locust Street, 9th Floor

Philadelphia, PA 19102

Attorneys for Appellant

Paul J. Halasz, Esq. [ARGUED]

Theresa A. Kelly, Esq.

Michael H. Dell, Esq.
2

Day Pitney LLP

One Jefferson Road

Parsippany, NJ 07054

Attorneys for Appellee

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OPINION

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RESTREPO, Circuit Judge.

Appellant L&M Agency Inc. challenges the District Court’s order granting 

summary judgment to Appellee Avis Rent A Car System Inc. on Appellant’s 42 U.S.C. 

§ 1981 discrimination and retaliation claims. Under the circumstances presented here, we 

find that Appellant has sufficiently established pretext to defeat summary judgment on its

discrimination claim. Appellant has failed, however, to make out a prima facie case of 

retaliation. Accordingly, we will reverse the District Court with respect to Appellant’s 

discrimination claim, affirm the District Court with respect to Appellant’s retaliation 

claim, and remand this matter for further proceedings.

I

Lakeisha McClain and her husband Leonard McClain, both of whom are AfricanAmerican, owned1

and operated2 L&M Agency Inc. (“L&M” or “Appellant”) for the 

purpose of running a vehicle rental business. In 2003, L&M entered into an Independent 

Operator Agreement (“IOA” or “Agreement”) with Avis Rent A Car System Inc.

 

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.

1 Ms. McClain is the president and sole shareholder of L&M. 

2 Ms. McClain was the primary operator of L&M’s location initially, but Mr. 

McClain assumed the primary operator role in approximately 2005.
3

(“Avis”), whereby L&M would operate an Avis location on South Henderson Road in 

King of Prussia, Pennsylvania.

Under the terms of the IOA, L&M would earn a commission based on the revenue 

generated from car rentals at that location, and Avis would provide L&M with the rental 

office, vehicles, business systems, training, and support. Among other things, the IOA 

stated that L&M would: (1) “[u]se the location and all Company-supplied equipment, 

including all telephones, solely for the operation of the Business;” (2) ensure that its staff 

be uniformed; (3) maintain the office “in good condition and repair;” and (4) allow Avis 

to enter the location for any purpose, including audits and inspections. App. 345-48, 352. 

The IOA could be terminated by either party without cause upon ninety days’ notice, or 

for good cause on thirty days’ notice. 

L&M’s operation of the Avis location was largely without incident until 2007, 

when Carol Mancini became the district manager for the region. According to Mr. 

McClain, the relationship with Ms. Mancini was rocky from the very beginning. During 

their first encounter, Mr. McClain claims that Ms. Mancini told him that she did not like 

him. In addition, Mr. McClain claims that Ms. Mancini showed disdain for Chester, 

Pennsylvania, a predominantly African-American city where Mr. McClain is from, and 

told him that she briefly attended Chester High School and was chased home from school 

every day. The McClains claim that Ms. Mancini made other comments they perceived 
4

to be racially motivated, and that Ms. Mancini did not adequately respond to their 

requests for assistance on various business matters.

3

 

In August of 2007, an attorney for the McClains sent a letter to Avis complaining 

that Ms. Mancini was discriminating against the McClains due to their race (“the 2007 

Letter”). Avis found the McClains’ claims to be unsubstantiated, but made adjustments 

to limit Ms. Mancini’s interactions with the McClains. However, in 2009, Ms. Mancini’s 

supervisor was promoted, which lead to an increase in Ms. Mancini’s interactions with 

the McClains. 

On November 3, 2011, Mark Osbourne, Avis’ Northeast Regional President, 

visited the L&M location. He was accompanied by other Avis officers and employees, 

including Ms. Mancini. Mr. Osbourne was not pleased with L&M. Among other things, 

Mr. Osbourne expressed dissatisfaction about: (1) the cleanliness and tidiness of the 

location; (2) the presence of the McClains’ personal items in various back office rooms; 

and (3) L&M’s below-target counter sales (including vehicle upgrades and additional 

services) to its customers. On November 10, 2011, Ms. Mancini and Barbara Long, 

Avis’ Territory Performance Manager for King of Prussia, returned to the L&M location 

to determine if any progress had been made on these issues. Ms. Mancini did not 

 

3 For example, Mr. McClain alleges that when he called the Avis office to have 

them repair the exterior lights at the King of Prussia location so that L&M customers and 

employees could see at night, he heard Ms. Mancini respond in the background by 

saying, “you’re from Chester. You scared of the dark?” App. 118. In addition, the 

McClains alleged that Ms. Mancini was dictating higher rental rates for L&M than for 

other operators in the area, which negatively impacted L&M’s ability to compete. The 

McClains also alleged that Ms. Mancini was restricting the rental vehicles available to 

L&M, which similarly impaired L&M’s ability to compete. 
5

perceive any substantial improvement to the issues previously identified by Mr. 

Osbourne, and noticed that Ms. McClain and her children were in one of the back office 

rooms for a non-work purpose. Thereafter, a confrontation ensued, during which Ms. 

Mancini and the McClains raised their voices. At one point, Mr. McClain announced that 

he was planning to call his lawyer or that his lawyer was on his way. 

At some point in November of 2011, after the November 10th visit, Avis decided 

to terminate the IOA with L&M. Mr. Osbourne made this decision, although he received 

input from others. Avis communicated the termination decision to L&M in a letter 

signed by Ms. Mancini, dated December 1, 2011. The letter offered no reason for the 

termination, and purported to be effective ninety days thereafter. L&M’s lawyer

responded to the termination in a letter dated December 27, 2011. Therein, L&M’s 

lawyer accused Avis of, among other things, discriminating against L&M because the 

McClains are African-American. Avis responded via an email dated December 30, 2011, 

and a letter dated January 24, 2012. In the January 2012 letter, Avis contested the 

McClains’ allegations, and, for the first time, stated two reasons for the termination: (1) 

failure to “keep the location in a neat and businesslike manner;” and (2) “poor revenue 

performance.” App. 369. After the termination was complete, L&M and the McClains 

filed suit against Avis in the District of New Jersey in August of 2012.

During the course of discovery, L&M served interrogatories on Avis. 

Interrogatory Number 1 read as follows: “Describe in detail each and every reason 

asserted by Defendant for terminating Plaintiff’s contractual relationship with Defendant, 

and describe the factual basis for same.” App. 374. Avis responded with the following:
6

Avis states that Plaintiff’s contractual relationship with 

Avis terminated because of Plaintiff’s unsatisfactory 

performance, and because of Plaintiff’s failure to abide by 

company standards and policies. Plaintiff failed to meet its 

goals for counter sales and demonstrated a lack of sufficient 

sales skills overall. Plaintiff failed to sufficiently maintain a 

visible and recognizable presence in the local marketplace. 

Plaintiff did not diligently promote the Avis brand in 

Plaintiff’s area. Plaintiff did not demonstrate a proper use of 

telephone techniques. Plaintiff’s employees behaved in a 

hostile and unprofessional manner towards Avis. Plaintiff’s 

employees refused to wear Avis uniforms. Plaintiff was 

given every opportunity to correct these faults, but 

demonstrated an inability to do so. Avis additionally refers to 

the Local Market Car: Contact Reports produced in response 

to Plaintiff’s Request for Production of Documents – Set 1.

App. 374. Mr. Osbourne was the Avis representative who signed the interrogatory 

responses. In doing so, he certified that the responses were true to the best of his 

knowledge, information, and belief.

During his deposition, Mr. Osbourne was asked the reasons for his decision to 

terminate the IOA with L&M. In response he said: 

There was a multitude of things that went into the 

decision. The primary decision was the location filth, and I 

mean the worst I have ever seen at any location in all my 

years, the hostile business relationship with our people, and 

that revenue wasn’t going up, CSI upsells not being right; all 

of those go towards my decision. 

App. 516. Mr. Osbourne also explained that “the location, when I visited it, was the 

dirtiest location I’d even been to . . . when I saw the location, that became one of the most 

important pieces to me.” App. 512. In addition, Mr. Osbourne was specifically asked 

about the reasons set forth in Avis’ response to Interrogatory Number 1. When asked 

whether L&M ever demonstrated to him a lack of sufficient sales skills, Mr. Osbourne 
7

responded: “No, because I wasn’t around long enough to know.” App. 516. When asked 

whether he had discussed L&M’s marketing or sales calls with anyone, Mr. Osbourne 

responded: “I did not, no.” App. 516. When asked whether L&M’s failure to 

demonstrate proper telephone techniques played any role in the decision to terminate the 

IOA, Mr. Osbourne responded: “Not at that time, no . . . no.” App. 516. When asked 

whether the refusal of L&M employees to wear Avis uniforms played any role in the 

termination decision, Mr. Osbourne responded: “No.” App. 517.

Following the completion of discovery, Avis moved for summary judgment on 

both of L&M’s remaining claims: discrimination and retaliation. The District Court 

granted Avis’s motion and entered summary judgment in favor of Avis and against L&M 

on both claims. This timely appeal followed.

II

The District Court had jurisdiction over this action pursuant to 28 U.S.C. § 1331 

and 28 U.S.C. § 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291.4

L&M brought its claims pursuant to 42 U.S.C. § 1981(a), which states: “All 

persons within the jurisdiction of the United States shall have the same right in every 

State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” 

 

4 We are satisfied that L&M has Article III standing as it alleged that it sustained an 

injury-in-fact as a result of the allegedly racially motivated termination of its contract 

with Avis. In addition, under the facts of this case, we are satisfied that it has statutory 

standing under § 1981 based on the theory that the corporation was discriminated against 

due to the race of its owner and main operator. See, e.g., Thinket Ink Inf. Res., Inc. v. Sun 

Microsystems, Inc., 368 F.3d 1053, 1059-60 (9th Cir. 2004); Gersman v. Group Health 

Ass'n, Inc., 931 F.2d 1565, 1569 (D.C. Cir. 1991), vacated on other grounds, 502 U.S. 

1068 (1992).
8

Section 1981 prohibits racial discrimination and retaliation against those who have 

opposed such discrimination. CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445

(2008). Independent contractors may pursue relief under § 1981 for discriminatory and 

retaliatory acts that occurred during the course of their independent contractor 

relationship. Brown v. J. Kaz, Inc., 581 F.3d 175, 181 (3d Cir. 2009). 

A

In a pretext suit such as this, a § 1981 discrimination claim is analyzed under the 

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973). See Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997) 

(acknowledging that the McDonnell Douglas framework is appropriate for cases based on 

a “pretext” theory); see also Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 298 (3d 

Cir. 2010) (“The burden on a § 1981 plaintiff is to ‘prove purposeful discrimination,’ and 

the McDonnell Douglas framework assists in this endeavor by structuring the evidence 

on the issue of ‘whether the defendant intentionally discriminated against the plaintiff.’”

(quoting Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989))). The first step 

of the McDonnell Douglas framework requires the plaintiff to establish a prima facie case 

of discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff successfully 

completes this step, as the District Court found here, the burden then shifts to the 

defendant “to articulate some legitimate, nondiscriminatory reason” for the termination. 

Id. If the defendant is able to do so, as the District Court also found here, the burden 

shifts back to the plaintiff to present “some evidence, direct or circumstantial, from which 

a factfinder would reasonably either (1) disbelieve the employer’s articulated legitimate 
9

reasons; or (2) believe that an invidious discriminatory reason was more likely that not a 

motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 

759, 764 (3d Cir. 1994). L&M challenges the District Court’s conclusions with respect 

to this third step—pretext.

 In rejecting L&M’s arguments under the first method of establishing pretext, the 

District Court concluded that L&M failed to come forward with evidence to demonstrate 

that Avis’ rationale for the termination was “so weak, incoherent, implausible or 

inconsistent an explanation that a reasonable factfinder would find it unworthy of 

credence.” App. 29. As the District Court correctly recognized, we have previously held 

that “[t]o discredit the employer’s proffered reason . . . the plaintiff cannot simply show 

that the employer’s decision was wrong or mistaken, since the factual dispute at issue is 

whether discriminatory animus motivated the employer, not whether the employer is wise 

shrewd, prudent, or competent.” Fuentes, 32 F.3d at 765. In Fuentes, we elaborated by 

saying: “to avoid summary judgment the plaintiff’s evidence rebutting the employer’s 

proffered legitimate reasons must allow a factfinder reasonably to infer that each of the 

employer’s proffered non-discriminatory reasons was either a post hoc fabrication or 

otherwise did not actually motivate the employment action (that is, the proffered reason is 

a pretext).” Id. at 764 (citations omitted). In that same opinion, however, we also 

declared:

We do not hold that, to avoid summary judgment, the plaintiff 

must cast doubt on each proffered reason in a vacuum. If the 

defendant proffers a bagful of legitimate reasons, and the 

plaintiff manages to cast substantial doubt on a fair number of 

them, the plaintiff may not need to discredit the remainder. 
10

That is because the factfinder’s rejection of some of the 

defendant’s proffered reasons may impede the employer’s 

credibility seriously enough so that a factfinder may 

rationally disbelieve the remaining proffered reasons, even if 

no evidence undermining those remaining rationales in 

particular is available.

 

Id. at 764 n.7.

In light of that framework, we consider Avis’ stated reasons for the termination. 

At first, Avis gave no reasons for the termination. After receiving L&M’s claims of 

discriminatory treatment, Avis relented and articulated two of its reasons (failure to “keep 

the location in a neat and businesslike manner” and “poor revenue performance”). Next, 

in its answer to Interrogatory Number 1, Avis articulated at least eight of its reasons, but 

notably excluded one of its previously stated reasons—failure to keep the location in a 

neat and businesslike manner. Finally, during his deposition, the Avis decision-maker 

stated that there were only three factors that contributed to the termination decision and 

he backed away from, either in whole or in part, no less than five of the reasons 

articulated in the interrogatory answer. Importantly, the Avis decision-maker placed 

substantial weight on the cleanliness issue at his deposition—a reason that was mentioned 

in the January 2012 letter, but that was omitted from the interrogatory answer. In our 

view, these inconsistent answers place this case squarely within the purview of Fuentes

footnote seven. Avis has proffered a “bagful of legitimate reasons” and L&M has, at the 

very least, “cast substantial doubt on a fair number of them.” Fuentes, 32 F.3d 764 n.7. 

Accordingly, L&M has done enough for the purposes of summary judgment to satisfy its 
11

burden as to pretext, because a reasonable factfinder under these circumstances could

disbelieve Avis’ articulated legitimate reasons.

B

To state a prima facie case of retaliation under § 1981 a plaintiff must show that: 

(1) they engaged in protected activity; (2) the employer took an adverse employment 

action against them; and (3) there was a causal connection between the protected activity 

and the adverse employment action. Estate of Olivia ex rel. McHugh v. New Jersey, 604 

F.3d 788, 798 (3d Cir. 2010). To engage in “protected activity” a plaintiff cannot 

complain about merely unfair treatment, rather they must complain about discrimination 

based on membership in a protected class. Barber v. CSX Distribution Servs., 68 F.3d

694, 701-02 (3d Cir. 1995).

We agree with the District Court that neither of Mr. McClain’s statements on 

November 10, 2011, amount to protected activity. Mr. McClain’s first statement was that 

his lawyer was “on the way” after the argument took place between Ms. Mancini and the 

McClains. App. 31. Mr. McClain’s second statement was to Ron Knaust, Ms. Mancini’s 

former supervisor: “here we go again with Carol. It’s crazy, the way how she just acted.” 

App. 31. As the District Court correctly pointed out, neither statement explicitly or 

implicitly communicated a complaint about racial discrimination. 

In contrast, the 2007 Letter, which explicitly complained about racial 

discrimination, was protected activity. However, we agree with the District Court that 

L&M is unable to demonstrate a causal connection between the 2007 Letter and the 2011 

termination. 
12

The more than four year gap between the protected activity and the adverse 

employment action is substantial. We have previously held that a period of days or 

weeks can be unduly suggestive of a retaliatory motive, but have found periods of months 

or years to be insufficient. Compare Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 

1989) (timing of two days sufficed to show causation), and Shellenbergher v. Summit 

Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003) (timing of ten days, along with other 

evidence, was enough to show causation), with Williams v. Philadelphia Housing 

Authority Police Dept., 380 F.3d 751, 760 (3d Cir. 2004) (timing of over two months was 

not unduly suggestive of retaliatory motive), and Krouse v. American Sterilizer Co., 126 

F.3d 494, 503 (3d Cir. 1997) (timing of nineteen months did not support a finding of a 

causal link).

In a case like the one now before us, with such a substantial gap in the timing, a 

plaintiff must come forward with some other evidence, whether it be direct or 

circumstantial, to make the causal connection between the protected activity and the 

adverse action. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280-81 (3d Cir. 2000). 

L&M has failed to do so. While it is true that courts may consider a party’s inconsistent 

reasons for the termination in the causation analysis, id. at 281, we have not found such 

evidence, in and of itself, to be sufficient for causation purposes under the circumstances 

presented here. Moreover, L&M has presented no competent evidence that Mr. 

Osbourne, the undisputed Avis decision-maker, was aware of the 2007 Letter at the time 

he made the decision to terminate the IOA in 2011. See Daniels v. Sch. Dist. of Phila., 

776 F.3d 181, 196-97 (3d Cir. 2015) (holding that a plaintiff “cannot establish . . . a
13

causal connection without some evidence that the individuals responsible for the adverse 

action knew of the plaintiff’s protected conduct at the time they acted” (citations 

omitted)). In addition, nothing in the record suggests that the 2007 Letter resulted in a 

change in the relationship between the parties that could reasonably be viewed as a 

“pattern of antagonism.” See Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 

895 (3d Cir. 1993) (recognizing a “pattern of antagonism” in a slew of written and verbal 

warnings, disciplinary activity, and other conduct, all of which caused the parties’ 

relationship to deteriorate and established a pattern of behavior). Indeed, L&M presented 

no evidence that Ms. Mancini ever made threats or comments concerning the complaints 

contained in the 2007 Letter. Finally, several intervening factors arose between the 2007 

Letter and the termination in 2011, including a documented history of below-target CSI 

performance by L&M. In sum, we agree with the District Court that L&M has failed to 

meet its burden with respect to the causation element of its retaliation claim. 

Accordingly, we will affirm the District Court’s grant of summary judgment on the 

retaliation claim. 

III

For the foregoing reasons, we conclude that L&M has discredited enough of Avis’ 

proffered legitimate, non-discriminatory reasons to show pretext sufficient to defeat 

summary judgment on the discrimination claim. On the retaliation claim, we conclude 

that L&M has not made a prima facie case of retaliation because it is unable to 

demonstrate a causal connection between the termination and the sole instance of 
14

protected activity. Accordingly, we will affirm in part, reverse in part, and remand for 

further proceedings consistent with this opinion.