Sanders v. Madison Square Garden, L.P. et al

Filing 114

OPINION AND ORDER # 95006 re: denying 61 FIRST MOTION for Partial Summary Judgment. filed by Isiah Lord Thomas, III, denying 54 MOTION for Partial Summary Judgment. filed by Anucha Browne Sanders, denying 67 MOTION for Partial Summary Judgment. filed by James L. Dolan, Madison Square Garden, L.P. The parties are directed to submit a joint pre-trial order by 8/17/07. (Signed by Judge Gerard E. Lynch on 8/6/07) (pl) Modified on 8/7/2007 (rw).

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Sanders v. Madison Square Garden, L.P. et al Doc. 114 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 1 of 55 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------x : ANUCHA BROWNE SANDERS, : : Plaintiff, : : -v: : MADISON SQUARE GARDEN, L.P., et al., : : Defendants. : : --------------------------------------------------------------x Anne C. Vladeck, Kevin T. Mintzer, and Karen Cacace, Vladeck, Waldman, Elias & Engelhard, P.C., New York, NY, for plaintiff. Ronald M. Green, Teresa M. Holland, Barry A. Cozier, Brian G. Cesaratto, Epstein Becker & Green, P.C., New York, NY, and Amber L. Kagan, Morgan, Lewis & Bockius LLP, New York, NY, for defendants MSG and Dolan. Sue Ellen Eisenberg and Lucetta Franco, Eisenberg & Bogas, P.C., Bloomfield Hills, MI, Laurie Berke-Weiss and Louis Pechman, Berke-Weiss & Pechman LLP, New York, NY, for defendant Thomas. GERARD E. LYNCH, District Judge: 06 Civ. 589 (GEL) OPINION AND ORDER In this employment discrimination action, plaintiff Anucha Browne Sanders charges that defendants Madison Square Garden, L.P., ("MSG"), Isiah Lord Thomas III, and James L. Dolan subjected her to discrimination on the basis of sex, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law 296 et seq. ("SHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code 8-107 et seq. ("CHRL"). Plaintiff moves for summary Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 2 of 55 judgment on her retaliation claim, arguing that defendants have failed to show a genuine issue of material fact as to that claim. Defendant Thomas moves for summary judgment on that same claim insofar as it is asserted against him. Defendants MSG and Dolan move for summary judgment on plaintiff's claims for pecuniary damage, arguing that her claims should be limited based on the discovery of after-acquired evidence. Finally, all defendants move for summary judgment on plaintiff's claim for reputation damages. The motions will be denied. BACKGROUND Because the parties seek summary judgment on certain of plaintiff's claims that is, because they ask the Court to find that certain of plaintiff's claims are so incontestable that judgment should be awarded to them without their having to present their case to a jury for purposes of this motion the evidence on all disputed points must be viewed in the light most favorable to the party that opposes summary judgment. On summary judgment, it is not the function of the Court to make factual findings or resolve disputed issues of fact. Rather, the Court's responsibility is to decide whether there are triable issues of fact that require resolution by a jury at trial. Consequently, nothing in this recitation should be taken as a factual finding, or as indicating any opinion on the part of the Court with respect to the merits of plaintiff's claims. In sketching the factual background for this motion, the Court merely indicates what the evidence would permit a jury to find, identifying significant disputes in the evidence. I. Browne Sanders's Employment With The Knicks Browne Sanders began her employment with MSG in November 2000 as a VicePresident of Marketing for the New York Knickerbockers ("Knicks"), a National Basketball Association ("NBA") franchise owned by MSG. (Mintzer Aff. Ex. 15.) As Vice-President of 2 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 3 of 55 Marketing, Browne Sanders's primary responsibility was to market the Knicks' team brand. (Pl. Dep. II 246-47.) Browne Sanders was also responsible for various facets of the Knicks' media and communications programs, game presentation, and event management. (Id.) Browne Sanders was hired by Stephen Mills, who was then MSG's Executive Vice-President for Franchise Operations. (Mills Dep. 47-49.) Mills was primarily responsible for evaluating Browne Sanders and recommending her for promotions and salary adjustments. (Mills Dep. 5357, 99.) As a Knicks executive, Browne Sanders had access to confidential financial and business proprietary material of MSG. (Mills Aff. 7.) When she was hired, Browne Sanders signed a copy of MSG's Confidentiality, Code of Business Conduct and Proprietary Property Agreement (the "Agreement") (Pl. Dep. II 44-46), which provided that "[d]uring [her] employment, [Browne Sanders] may not engage in activities or have personal or financial interests that may impair, or appear to impair, [her] independence or judgment or otherwise conflict with [her] responsibilities to [MSG]." (Cesaratto Aff. Ex. E.) Browne Sanders also signed MSG's "Employee Code of Conduct," which stated that "[p]ublic trust and confidence are the greatest assets held by [MSG]." (Pl. Dep. II 24; Cesaratto Aff. Ex. F.) In March 2002, Browne Sanders was promoted to Senior Vice-President, Marketing & Business Operations. (Pl. Dep. II 83-85; Mills Dep. Ex. 4.) Her responsibilities expanded to include, among other things, oversight of the marketing and business operations budget. (Mills Aff. 8; Dolan Aff. 3.) Browne Sanders remained in that position until her termination in January 2006. Her total compensation for just over five years of employment with the Knicks exceeded $1,100,000. (Moran Aff. 11.) In her new role, plaintiff continued to report to Mills, 3 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 4 of 55 who had by then been promoted to President, MSG Sports Team Operations. (Mills Dep. Exs. 1, 4.) Thomas was hired as President of Basketball Operations for the Knicks in December 2003. (Thomas Dep. 130.) In that position, Thomas oversaw the coachers, players, and other Knicks personnel at the MSG Training Center located in Tarrytown, New York. (Thomas Aff. 3.) In addition, Thomas had an office at MSG's headquarters in Manhattan where Browne Sanders worked. (Pl. Dep. I 213-14.) Although Thomas did not supervise Browne Sanders, Browne Sanders was responsible for keeping Thomas informed about business developments related to the team. (Pl. Dep. I 40 (stating that Browne Sanders had a "dotted line relationship" with Thomas).) Until 2004, Browne Sanders received positive performance reviews and numerous bonuses. (Dolan Dep. Ex. 16; Mills Dep. 56; Mills Dep. Exs. 3, 6-8, 11; Mintzer Aff. Ex. 22.) Browne Sanders also had a good working relationship with Kevin Layden, the Knicks' President and General Manager until his termination in December 2003. (Pl. Dep. I 33-34, 49.) However. beginning in 2004, Browne Sanders began experiencing difficulties at work. In March 2004, Browne Sanders met with Mills and Thomas to discuss a conflict between Thomas and Browne Sanders over their respective job responsibilities. (See Pl. Dep. I 122-23; see generally Mills Dep. 189-201. See also Olsen Dep. Ex. 7 (describing the "[r]ole conflict between Anucha and [Thomas]").) Browne Sanders also began encountering conflict with other colleagues, including Frank Murphy, then-Senior Vice-President of Basketball Operations. (Pl. Dep. I 240; see Thomas Dep. Ex. 1.) In addition, in June 2005, Browne Sanders participated in a series of budget meetings with Mills, Dolan, and Hank Ratner, MSG's Vice-Chairman (Mills Dep. 124; 4 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 5 of 55 see Dolan Dep. 73; Ratner Dep. 80-87, 92), that Mills characterized as "disastrous." (Mills Dep. 124.) Browne Sanders acknowledges that a reasonable jury could find that her job performance generally declined in 2005. (Pl. Reply 9 n.8.) II. The Sexual Harassment Allegations Such a jury also could conclude that the relationship between Browne Sanders and Thomas became increasingly strained during 2005. Browne Sanders accuses Thomas of engaging in unwanted sexual advances; Thomas denies some of the alleged incidents and challenges Browne Sanders's interpretation of others. For purposes of this motion, the details of the disputed incidents need not be rehearsed. The flavor of the allegations is sufficiently conveyed by two alleged episodes. In May 2005, Browne Sanders told Peter Olsen, an MSG consultant and an advisor to Thomas, that Thomas had said that he loved her and requested that she "go off site" with him. (Olsen Dep. 117.) Thomas disputes this charge. (Thomas Dep. 21314; 257-60.) Thomas acknowledges, however, that in December 2005, at a Knicks game, he attempted to kiss Browne Sanders on the cheek; when Browne Sanders pulled away, Thomas replied, "no love today?" (Thomas Dep. 258-59.) During 2005 as well, Browne Sanders raised questions about alleged sexual harassment of other female employees by Knicks personnel. In June 2005, Browne Sanders informed her supervisee Dan Gladstone that one of Gladstone's subordinates, Hassan Gonsalves, had been accused of making harassing and derogatory comments towards female Knicks employees and about Browne Sanders. (Gladstone Dep. 207-12; Gladstone Dep. Ex. 7; Pl. Dep. Ex. 11.) When Gladstone questioned Stephon Marbury, a Knicks player and Gonsalves's cousin, about Browne Sanders's allegations, Marbury bluntly expressed his hostility to Browne Sanders. (Marbury 5 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 6 of 55 Dep. 28-32; Gladstone Dep. Ex. 7; Gladstone Dep. 216.) When Browne Sanders informed John Moran, MSG's Vice-President of Employee Relations, about Gonsalves's and Marbury's behavior (Moran Dep. 70-75; Pl. Dep. II 352-53, 355-57), Gonsalves was terminated (Moran Dep. 73-74), but Marbury was not questioned about Browne Sanders's allegations (id. 99, 115). Towards the end of 2005, Browne Sanders began investigating and documenting the allegedly inappropriate conduct of Thomas and Marbury. In November 2005, Browne Sanders spoke to Karen Buchholz, a Knicks Vice-President who reported to Browne Sanders, about Buchholz's interactions with Thomas and Marbury, and requested that Buchholz send her an email documenting those interactions. (Buchholz Dep. 124-33, 169-85; see Buchholz Dep. Ex. 1.) Around the same time, Browne Sanders asked Gladstone to document his account of his conversations with Marbury. (Gladstone Dep. 215-19.) In December 2005, Browne Sanders asked another Knicks employee, Gary Winkler, to send her an e-mail documenting his conversations with Petra Pope, the head of the Knicks' dance team, concerning allegations (denied by Thomas) that Thomas had made inappropriate comments to Pope in 2004. (Pl. Dep. I 176-78; Thomas Dep. 263-64; Olsen Dep. Ex. 7.) Browne Sanders also asked other members of her staff to document incidents of sexual harassment they witnessed at work. (Pl. Dep. I 33334.) Matters came to a head in December 2005 and January 2006. On December 2 and 4, Browne Sanders, accompanied by Buchholz, met with an attorney to discuss Browne Sanders's sexual harassment complaint. (See Buchholz Dep. 196-98.) On December 22, counsel for Browne Sanders met with counsel for MSG. (Mintzer Aff. 25; Schoenfeld Aff. 4.) At that meeting, Browne Sanders's counsel informed MSG of Browne Sanders's sexual harassment 6 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 7 of 55 complaint. (Mintzer Aff. 25.) The attorneys agreed to "attempt to expedite a negotiated, good faith resolution of Ms. Browne Sanders' claims." (Id. 26; Mintzer Aff. Ex. 19.) III. MSG's Internal Investigation and Browne Sanders's Termination Shortly after the December 22 meeting, MSG assigned Moran and Rochelle Noel, an inhouse attorney for Cablevision, MSG's parent company, to conduct an internal investigation into Browne Sanders's complaint. (Schoenfeld Aff. 7.) On January 6, 2006, Moran and Noel interviewed Browne Sanders as part of that investigation. (Mintzer Aff. Ex. 23.) Thomas was interviewed by Moran and Noel on December 23, 2005, and January 11, 2006. (Moran Dep. Exs. 10, 11; Noel Dep. Exs. 2, 13, 14.) According to Moran and Noel, Thomas claimed during the interview that Browne Sanders's allegations were false, and that Browne Sanders had concocted the charges as a result of her conflict with Thomas over their respective job responsibilities. Specifically, Thomas claimed that he and Browne Sanders "butted heads" because Thomas "wanted complete control of players['] time and responsibilities," which Browne Sanders resisted, that Browne Sanders "wanted to be making decisions" for Thomas, and that Browne Sanders acted like she was Thomas's boss. (Moran Dep. 299-300, 310-12; Moran Dep. Exs. 10, 11; Noel Dep. 64-67, 94-95. 232-233; Noel Dep. Exs. 2, 13, 14.) Thomas also provided the investigators with specific examples of Browne Sanders's allegedly deficient job performance. (Moran Dep. 315-16; Moran Dep. Ex. 11.) Simultaneously with the investigation, Browne Sanders and MSG engaged in settlement negotiations. On December 27, Browne Sanders's counsel conveyed a settlement proposal to MSG's counsel; MSG's counsel presented a counter-offer on December 30. (Mintzer Aff. 27-28 & Ex. 20.) Along with the offer, MSG wrote to Browne Sanders's counsel that her 7 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 8 of 55 proposal lacked a "rational basis," but nevertheless that "MSG [was] ready, willing and able to continue as rapidly as possible [the parties'] good-faith discussions in order to find a mutually acceptable resolution." (Mintzer Aff. Ex. 20.) On January 3, 2006, Browne Sanders's counsel orally conveyed another settlement proposal to MSG's counsel. (Mintzer Aff. 29.) On January 13, 2006, Noel and Moran finalized the findings of their investigation in an investigation summary. (Noel Dep. Ex. 14.) On January 19, 2006, Marc Schoenfeld, thenActing General Counsel for MSG, drafted a memorandum on behalf of Rusty McCormack, MSG's Senior Vice-President of Human Resources, making recommendations to MSG based on the findings in the investigation summary (the "McCormack Memo" or "Memo"). (Franco Aff. Ex. G.) The McCormack Memo recommended that Thomas receive "sensit[ivity]" training, in light of the finding that Thomas "occasion[ally] used profanity and . . . raised his voice in the workplace," and to address "one occasion" on which Thomas "greeted Browne Sanders with a hug and kiss." (Id.) The McCormack Memo also recommended that Mills meet with Cablevision's human resources officers to discuss what "lessons, if any, may be learned from the" investigation. (Id.) However, the Memo found that "most of Browne Sanders' allegations were not confirmed," and stated that Browne Sanders had exhibited a "poor relationship and difficulty interacting with Mills and other members of MSG management," and that Browne Sanders and Thomas had a "number of business disagreements in philosophy and management style." (Id.) "[I]n light of . . . issues related to . . . Browne Sanders' communication skills and overall effectiveness," the Memo recommended that Browne Sanders's employment should be terminated. (Id.) On January 19, 2006, Browne Sanders was dismissed from her employment 8 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 9 of 55 with the Knicks. (Mintzer Aff. 30.) The decision to fire Browne Sanders was made by Dolan, MSG's Chairman. (Dolan Dep. 85, 87 ("[A]ll decisions at the Garden I make on my own.").) Defendants have asserted two seemingly inconsistent reasons for Browne Sanders's termination. First, defendants represented to the Equal Employment Opportunity Commission ("EEOC") that Browne Sanders was terminated because she "lacked the interpersonal skills to perform her job effectively, and refused to follow [MSG's] directions." (Mintzer-Thomas Aff. Ex. 7, at 2.) Specifically, Dolan testified that he started to believe that Browne Sanders did not have the skills to perform her job as early as the summer of 2005, when she failed to perform adequately at budget meetings. (Dolan Dep. 61, 64, 186.) Dolan also testified that he had been advised of Browne Sanders's alleged deficiencies by other Knicks executives, including Mills and Ratner, prior to the time that she made her harassment complaint. (Dolan Dep. 48, 188; see Ratner Dep. 80, 83-87, 93, 105, 110; Mills Dep. 369-70.) However, aspects of Dolan's testimony could be found to contradict defendants' representation to the EEOC that Browne Sanders was terminated due to her deficient work performance. Dolan repeatedly testified that, although Browne Sanders's work performance was deficient, he would not have terminated Browne Sanders but for a concern entirely separate from her general work performance: her conduct during MSG's internal investigation of her sexual harassment complaint. (Dolan Dep. 190, 192, 200-02.) Specifically, Dolan stated that Browne Sanders "could have continued on doing her job" if she had not gone "off through the company attempting to garner support for [her] complaint," and if she had not attempted to extort MSG with an unreasonable settlement demand. (Id. 192. See id. 179 (describing Browne Sanders's settlement demand as an extortionate "threat").) Indeed, Dolan appeared directly to deny that his 9 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 10 of 55 decision to fire Browne Sanders was based on the performance issues cited in the McCormack Memo and presented to the EEOC as the reason for her firing. (Id. 64 ("I did not agree that she should be fired [due to her deficient work performance].").) According to Dolan, Browne Sanders's alleged "tamper[ing]" with the investigation and abuse of her authority during that investigation, as reflected by the findings of the investigation summary and McCormack Memo, was the "last straw" that led to her termination. (Id. 77, 178, 190. See id. 202 ("[W]e had no way of knowing whether [plaintiff] was going to continue to [violate company policy] or not continue to do that, and so how could I then have her continue to run that operation. . . . [T]hat is why she was let go.") (emphasis added).)1 IV. The Current Litigation On January 24, 2006, Browne Sanders filed the complaint that initiated the present action, alleging that she was discriminated against on the basis of her sex and terminated in retaliation for her sexual harassment complaint in violation of federal, state, and city law. (Am. Compl. 54-85.) That same day, defense counsel issued press statements on behalf of their clients. MSG's and Dolan's counsel stated that Browne Sanders's claim was "baseless" (Watkins Dep. 45), and that Browne Sanders was terminated due to her deficient work performance. (Id. 143-45.) Thomas's counsel stated that Browne Sanders's claims were "a blatant attempt . . . to get a large some of money from [MSG] by taking advantage of [Thomas's] celebrity status." (Mintzer-Thomas Aff. Ex. 4.) Browne Sanders responded in a statement denying defendants' accusations, which she Dolan claims that, although he did not personally read the McCormack Memo (Dolan Dep. 195-96), McCormack informed him about Browne Sanders's alleged tampering with the investigation before she was terminated. (See id. 85-89.) 10 1 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 11 of 55 read at a press conference on January 25, 2006. (Cesaratto Aff. Ex. G.) That same day, Thomas held a press conference in which he again denied Browne Sanders's claims and asserted that Browne Sanders was trying to use him as a "pawn" for her "financial gain." (Thomas Aff. 7.) Two days later, Thomas held another press conference in which he again denied Browne Sanders's claims. (Id.) During discovery, MSG sought and obtained (over Browne Sanders's objection) copies of Browne Sanders's federal, New York, and New Jersey tax returns for 2000-2005. (Cesaratto Aff. Ex. N.) The 2001-2004 returns originally produced to MSG included Schedule C deductions for the expenses of a "direct marketing" business, totaling approximately $73,000. (Cesaratto Aff. Exs. P(PL4302), Q(4321), R(PL4353), S(PL4388).) However, Browne Sanders shortly thereafter produced amended federal and state tax returns for 2003 and 2004. (Cesaratto Aff. Ex. O.) The 2003 and 2004 tax returns had been amended the day after Browne Sanders's initial production to remove the Schedule C deductions. (Cesaratto Aff. Exs. W-X.) The amendment resulted in the elimination of approximately $20,000 of business deductions for 2003 and 2004. (Reimer Dep. 36-37.) Although the 2001 and 2002 tax returns included identical deductions (Cesaratto Aff. Exs. P(PL4302), Q(4321)), they were not similarly amended. Browne Sanders denies that she ever operated a "direct marketing" business, but claims that the Schedule C deductions were due to accountant error and not a deliberate attempt to commit tax fraud. (Pl. Dep. II 43-44; Halstead Dep. 44-46, 48, 50-51, 64-65, 72.) Browne Sanders asserts that she did not amend her 2001 and 2002 tax returns on the advice of her current accountant, who informed her that there is a "three year statute of limitations" for amending tax returns. (Reimer Dep. 67; see Reimer Aff. 19.) 11 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 12 of 55 Since her termination, Browne Sanders claims that she has applied for jobs with "many potential employers" in a "wide variety of businesses." (Pl. Aff. 3-4.) At the time the motions were filed, Browne Sanders was working as an independent contractor for a non-profit organization. (Id.) Her annual compensation was less than half of what she earned at MSG. (Id.)2 According to Browne Sanders, since her termination, she has been repeatedly questioned about the circumstances of her dismissal from MSG by prospective employers and recruiters, some of whom have referred to her dismissal from MSG as a reason for her rejection from employment. (Id.) As a result of her alleged injury, Browne Sanders seeks to recover approximately $600,000 in back pay, $9,762,000 in front pay and reputation damages through age 65, an unspecified amount for lost pension payments and stock options, and reinstatement.3 (Cesaratto Aff. Ex. HH.) DISCUSSION Plaintiff alleges that defendants engaged in unlawful conduct by discriminating against her on the basis of her sex, subjecting her to sexual harassment, and retaliating against her for her sexual harassment charge. None of the parties move for judgment as a matter of law on plaintiff's sex discrimination or sexual harassment claims. Thus, the merits of those claims will be determined by a jury at trial, and the Court will not discuss their merits except to the extent that a discussion of the underlying claims is necessary to determination of the pending motions. At oral argument, plaintiff's counsel represented to the Court that Browne Sanders is no longer working for the same non-profit organization, and has taken a new position in Buffalo, New York. (Tr. 5.) However, counsel also stated that Browne Sanders is still receiving half the salary she received from the Knicks. (Id.) Although the initial complaint also included a claim for emotional distress damages (Compl. 58), the amended complaint does not include that claim. (See Tr. 11.) 12 3 2 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 13 of 55 However, both plaintiff and defendants argue that they are entitled to judgment as a matter of law on certain of plaintiff's other claims. Specifically, plaintiff argues that she is entitled to judgment on her retaliation claim, while defendant Thomas argues that he is entitled to judgment on that same claim insofar as it is asserted against him. In addition, all three defendants allege that certain of plaintiff's claims for damages are barred as a matter of law. Thus, the pending motions require the Court to consider the evidence bearing on plaintiff's retaliation and damages claims. However, as stated above, such consideration of the merits does not constitute fact-finding by the Court. Instead, the following discussion only identifies significant factual disputes which preclude the granting of judgment as a matter of law. The Court's responsibility at this juncture is only to identify the factual disputes contained in the record; it will be the jury's responsibility to resolve those disputes at trial. I. Summary Judgment Standards Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court's responsibility is to determine if there is a genuine issue to be tried, and not to resolve disputed issues of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must draw all reasonable inferences and resolve all ambiguities in the nonmoving party's favor, and construe the facts in the light most favorable to the nonmoving party. Id. at 254-55. However, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). 13 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 14 of 55 The party seeking summary judgment bears the burden of showing that no genuine factual dispute exists. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). Once the moving party has made a showing that there are no genuine issues of material fact, the burden shifts to the nonmoving party to raise triable issues of fact. Anderson, 477 U.S. at 250. A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the nonmoving party. Id. at 248. See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004) ("[If] . . . there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.") (emphasis added) (citation and internal quotation marks omitted). II. The Damages Claims A. After-Acquired Evidence Defendants MSG and Dolan argue that Browne Sanders's erroneous tax returns conclusively establish that she was either operating an outside business or engaging in tax fraud while employed at MSG, either of which would constitute a violation of MSG policy. Therefore, defendants argue that Browne Sanders cannot recover damages for any period after which MSG would have terminated her for her alleged misconduct. (Mem. of Law In Support of Madison Square Garden, L.P. and James L. Dolan's Mot. for Partial Summ. J. ("MSG Mem.") 12.) Plaintiff argues that factual disputes exist as to both whether she violated MSG policy and whether she would have been terminated due to such misconduct, thereby precluding summary judgment. The Court agrees. Defendants' attempt to limit plaintiff's damages is predicated on the so-called afteracquired evidence doctrine. After-acquired evidence is defined as "evidence of employee 14 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 15 of 55 misconduct, such as criminal behavior, employer rule infractions, malpractice and the like, of which the employer became aware only after the employee's termination." Ahing v. Lehman Bros., No. 94 Civ. 9027, 2000 WL 460443, at *11 (S.D.N.Y. Apr. 18, 2000) (emphasis in original), citing Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 147 n.17 (2d Cir. 1999). Since after-acquired evidence of employee wrongdoing by definition cannot have been the reason for the employee's firing, it does not bar the employee's claims of employment discrimination. McKennon v. Nashville Banner Pub'g Co., 513 U.S. 352, 360-61 (1995). However, evidence that the employee would have been terminated for lawful reasons if the employer had been aware of the employee's misconduct will make certain remedies, such as reinstatement and front pay, unavailable. Id. at 362.4 In order to rely on the after-acquired evidence doctrine, the employer must establish that the employee's wrongdoing was of such severity that the employee would have been terminated for that reason alone if the employer had known of it at the time of discharge. Id. at 362-63. The doctrine is not limited to workplace misconduct; instead, an employee's damages may be limited by misconduct that is "criminal in nature," or that "compromise[s] the integrity of the employer's business." EEOC Compliance Manual 604:0182. See Washington v. Lake County, Ill., 969 F.2d 250, 256-57 (7th Cir. 1992) (granting summary judgment on after-acquired evidence claim where plaintiff concealed his criminal conviction). However, summary judgment is Although McKennon was an age discrimination case, because the substantive, antidiscrimination provisions of the ADEA are modeled upon Title VII, see Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985), "the McKennon analysis is applicable to the instant Title VII case." Flores v. Buy Buy Baby, Inc., 118 F. Supp. 2d 425,433 n.3 (S.D.N.Y. 2000), citing Manard v. Fort Howard Corp., 47 F.3d 1067 (10th Cir. 1995). See Vichare v. AMBAC, Inc., 106 F.3d 457, 468 (2d Cir. 1996) (applying the after-acquired evidence doctrine to a Title VII case); Greene v. Coach, Inc., 218 F. Supp. 2d 404, 412 (S.D.N.Y. 2002) (same). 15 4 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 16 of 55 inappropriate on an after-acquired evidence defense unless the employer establishes that there are no "material issues of relevant fact as to whether [the employer] would have fired [the employee] solely on the basis of" the newly-discovered information. Flores v. Buy Buy Baby, Inc., 118 F. Supp. 2d 425, 432-34 (S.D.N.Y. 2000); see Quinby v. WestLB AG, No. 04 Civ. 7406, 2007 WL 1153994, at *16 (S.D.N.Y. Apr. 19, 2007) (denying summary judgment where there were issues of fact as to whether plaintiff falsified his job application). Defendants argue that plaintiff's erroneous tax returns conclusively establish that she either operated an outside business or committed tax fraud while employed at MSG. Under either scenario, defendants argue that plaintiff's potential damages are limited to damages plaintiff incurred prior to November 21, 2006, the date on which defendants first learned of her alleged misconduct.5 Plaintiff argues that her erroneous tax returns do not establish as a matter of law that she violated MSG policy, and that, even if she did engage in misconduct, defendants have not established as a matter of law that plaintiff would have been terminated if they had discovered the misconduct prior to her termination. As an initial matter, plaintiff argues that defendants' after-acquired evidence defense fails because her alleged misconduct involves her tax returns, which are "confidential and statutorily protected from disclosure." (Pl. Mem. In Opp'n to Madison Square Garden, L.P. and James L. Dolan's Mot. for Summ. J. ("Pl. Opp'n Mem. I") 17-18, citing Russell v. Bd. of Plumbing Alternatively, defendants argue that plaintiff's damages claim should be limited as of June 2006, "when Plaintiff should have first produced [the tax returns] without asserting baseless relevance objections that delayed their production . . . ." (MSG Mem. 13.) However, as summary judgment on defendants' after-acquired evidence defense will be denied, it is unnecessary to determine here the precise date from which plaintiff's damages should arguably be limited. Should it be necessary, such a determination is best left to the fact finder at trial. 16 5 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 17 of 55 Exam'rs of County of Westchester, 74 F. Supp. 2d 339, 348 (S.D.N.Y. 1999).) Thus, plaintiff argues that defendants could not make employment decisions based on her tax returns because the defendants were not legally entitled to review them. However, although an employer cannot require an employee to produce her tax returns through unlawful "coercion," Russell, 74 F. Supp. 2d at 348, defendants did not unlawfully coerce plaintiff to produce her tax returns, but instead were legally entitled to obtain such evidence during the discovery process. Indeed, the Court specifically ordered plaintiff to produce her tax returns as part of discovery. (Cesaratto Aff. Ex. M). Thus, defendants did not engage in unlawful tactics to secure the tax returns, but instead used the legal process to obtain evidence relevant to plaintiff's suit; such evidence may be used against her as part of an after-acquired evidence defense, "even if the information [that gave rise to the defense] might have gone undiscovered absent the suit." McKennon, 513 U.S. at 352. Defendants' sole evidence of plaintiff's alleged misconduct is her 2001-2004 tax returns; defendants have produced no other evidence that plaintiff either engaged in tax fraud or operated an outside business in violation of MSG policy. Although plaintiff concedes that her tax returns were erroneous and that she did not actually operate an outside business from 2001-2004, she argues that she was unaware of the deductions until after she produced her tax returns to defendants during discovery. In support of her argument, plaintiff has submitted evidence (1) that she did not operate an outside business (Sanders Dep. 291; Pl. Dep. II 44-45; Weaver Dep. 34; see Mintzer Aff. Ex. 1, at BH0013 (answering "No" under the question "Did you start a business?" on Browne Sanders's 1040 questionnaire)); and (2) that the false deductions were the result of accountant error, and not a deliberate attempt to commit tax fraud (Halstead Dep. 44-46, 17 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 18 of 55 50-51, 64-65, 72, 185-88, 191; Reimer Dep. 24, 63-64). Thus, plaintiff argues that she has submitted evidence creating an issue of fact as to whether she violated MSG policy. Nevertheless, defendants argue that the simple existence of the deductions alone establishes that plaintiff must have known about them, regardless of her testimony and evidence to the contrary. (MSG Mem. 19 ("`[A] jury could conclude from nothing more than the presence of [an] uncontested signature' that the violation was willful."), quoting United States v. Romanow, 509 F.2d 26, 27 (1st Cir. 1975).) Whether Browne Sanders actually engaged in activity that would have led to her termination presents issues of fact that are properly resolved by the fact finder at trial, and not by the Court on summary judgment. With respect to defendants' more serious accusations of tax fraud, the principal issue concerns Browne Sanders's knowledge and intent. Browne Sanders now acknowledges that her tax returns claimed tens of thousands of dollars in deductions inaccurately attributed to expenses of a business enterprise she now contends never even existed. A fact finder could reasonably infer that Browne Sanders was aware of the erroneous deductions, and only amended her returns after she was required to produce them, as a cover-up for her "willfull[y] . . . fraudulent" deductions. (MSG Mem. 18, citing United States v. Magnus, 365 F.2d 1007 (2d Cir. 1966).) As defendants assert, it is reasonable to infer that a person (particularly a sophisticated business executive such as Browne Sanders) is aware of the contents of her own tax returns, which she has signed and declared to be true under penalty of perjury. Nevertheless, Browne Sanders has testified that she did not review the returns before filing them, and was not aware of the erroneous deductions until she produced her tax returns during discovery. Whether that explanation is credible is a question for the fact finder at trial. "In light 18 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 19 of 55 of the contradictory allegations and claims on both sides, this issue cannot be resolved on a motion for summary judgment." Sweet v. Blue Cross and Blue Shield of Utica-Watertown, Inc., No. 93 Civ. 811, 1998 WL 695610, at *6 (N.D.N.Y. Sept. 28, 1998).6 Moreover, even if it were indisputable that Browne Sanders had committed tax fraud, defendants would still be required to show that she would have been terminated as a result of that misconduct. Defendants argue that Browne Sanders's alleged misconduct was a "direct violation" of the Agreement, and that her failure to "do the right thing" would inevitably have led to her termination. (MSG Mem. 19.) Defendants have submitted evidence that at least some MSG employees have been terminated for violating various MSG policies. (Moran Aff. 2, 5, 6 & Exs. A-G.) For example, one MSG employee was terminated after she was arrested for conspiracy to commit bank fraud (Moran Aff. Ex. A), and another was suspended after being arrested for driving under the influence and criminal impersonation (Moran Aff. Ex. C), conduct that defendants characterize as "significantly less serious unlawful conduct than that Plaintiff engaged in." (MSG Mem. 20.) In addition, Browne Sanders herself testified that she terminated one of her subordinates for attempting to engage in outside business activity while working at MSG. (Pl. Dep. II 240-41.) Browne Sanders does not dispute that MSG has terminated employees for violating Similarly, issues of fact exist with respect to defendants' alternative, less persuasive charge that Browne Sanders operated an outside business in violation of company policy. Browne Sanders denies that she operated any such business, and defendants have offered no tangible proof of any business activity. But plaintiff is wrong that there is no evidence supporting defendants' charge (Pl. Opp'n Mem. I 10-11): her own sworn representations on her tax returns constitute admissible evidence confessing to such conduct. While a fact finder may be more likely to believe that the tax returns were falsehoods, it is for the fact finder to decide what to make of Browne Sanders's conflicting accounts. 19 6 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 20 of 55 company policies in the past; however, she argues that the policies are not applied across the board, but in an inconsistent fashion which belies defendants' argument that her alleged misconduct inevitably and unquestionably would have led to her termination. For example, Browne Sanders provides evidence that other employees including Thomas and Dolan have violated MSG policies in the past but were not terminated as a result of their violations. (Mintzer Aff. Ex. 5, at 5; Thomas Dep. 18-19; Favorito Dep. 46-47.) Furthermore, Browne Sanders argues that defendants' alleged comparators are not similarly situated to her because they neither held the same position as she nor engaged in the same type of misconduct. For example, Browne Sanders claims that several of defendants' comparators were fired after they were arrested, while she has "not been charged with any crime." (Pl. Opp'n Mem. I 18.) Defendants argue that plaintiff's evidence is merely an attempt "to divert attention from her own wrongdoing by referencing the entirely inapposite alleged misconduct" of Dolan and Thomas (Reply Mem. of Law In Further Support of Madison Square Garden, L.P. and James L. Dolan's Mot. for Partial Summ. J. ("MSG Reply") 8 n.8), and that their admitted failure to produce similarly situated comparators "does not exonerate plaintiff" for her own alleged misconduct (id. 8 (emphasis in original)), but is simply the result of the unique nature of plaintiff's misconduct. Defendants misinterpret the summary judgment standard. In order to survive a motion for summary judgment, plaintiff does not need to be "exonerate[d]" from wrongdoing. (Id.) Instead, plaintiff only needs to show that a genuine issue of fact exists as to whether she would have been terminated for her alleged misconduct. Even if Browne Sanders did violate MSG policy, it is MSG's burden to show that such wrongdoing would have inevitably led to her 20 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 21 of 55 termination. MSG's failure to establish that it terminates each and every employee that violates its policies whether those policies prohibit operating an outside business, committing tax fraud, or otherwise creates such an issue of fact. See Sweet, 1998 WL 695610, at *6 (denying summary judgment where employer failed to show that it would have fired plaintiff "as a matter of settled company policy had it known of his actions"). Furthermore, although Dolan and Mills testified that they unquestionably would have terminated Browne Sanders if they had known about her alleged misconduct, a fact finder is not required to accept an employer's testimony in determining whether the doctrine should apply. See Lewis v. Sugar Creek Stores, Inc., No. 96 Civ. 0100, 1996 WL 685730, at *3-4 (W.D.N.Y. Nov. 25, 1996). Even if Browne Sanders's termination would have been consistent with reasonable business judgment, it does not follow that she inevitably would have been terminated due to her alleged misconduct. For example, a reasonable fact finder could determine that plaintiff's continued employment with the Knicks, which had been publicized and honored within the industry (see Pl. Aff. 2 (stating that Browne Sanders "was named one of the top 40 professionals in the sports field under 40 years old by the Sports Business Journal")), was so important to MSG that MSG would not have terminated her, even if it had discovered her alleged misconduct: "The fact that [defendants] could have fired [plaintiff] . . . does not mean that they necessarily would have terminated [her]." Lewis, at *4. The Court cannot say as a matter of law that plaintiff's alleged misconduct unquestionably outweighed whatever benefit her continued employment would have provided to MSG, and thus "limiting damages is . . . inappropriate at this stage of the proceedings." Sweet, 1998 WL 695610, at *6. See McLeanNur v. Dep't of Transp., City of N.Y., No. 98 Civ. 819, 2000 WL 297176, at *6 (S.D.N.Y. Mar. 21 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 22 of 55 21, 2000) (finding that it is not the responsibility of the Court to "scrutinize the personnel decisions of an employer"). Finally, defendants argue that plaintiff violated MSG policy, not only during the years that she actually filed the erroneous tax returns, but also in November 2006 when she failed to amend her 2001 and 2002 tax returns along with her 2003 and 2004 tax returns, even though she was no longer employed by MSG at that time. Defendants argue that plaintiff's failure to amend her 2001 and 2002 tax returns constitutes a "continu[ation]" of her prior misconduct, and allowed her to "retain . . . false tax benefits." (MSG Mem. 21.) Plaintiff argues that posttermination misconduct cannot be grounds for an after-acquired evidence defense, and even if it could, her failure to amend her 2001 and 2002 tax returns did not constitute misconduct because she was advised not to amend those returns by her accountant. (Reimer Dep. 67-68; Reimer Aff. 19.) Defendants are not remotely entitled to summary judgment on this issue. The legal basis for defendants' argument is disputable. The Second Circuit has never had occasion to decide whether post-employment misconduct can support an after-acquired evidence defense. While at least one circuit has held that it can, see Sellers v. Mineta, 358 F.3d 1058, 1063 (8th Cir. 2004), and another has at least held out the possibility that it might, Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 555 (10th Cir. 1999), the weight of authority in the district courts is to the contrary. See, e.g., Sigmon v. Parker Chapin Flattau & Klimpl, 901 F. Supp. 667, 682-83 (S.D.N.Y. 1995); Ryder v. Westingthouse Elec. Corp., 879 F. Supp. 534, 537-38 (W.D. Pa. 1995). It is unnecessary to rule on this legal issue to decide defendants' motion, however, because even if the after-acquired evidence doctrine applies, on this record factual issues 22 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 23 of 55 preclude a determination as a matter of law that plaintiff's actions in 2006 would have led to her firing. In holding that post-termination conduct, under certain circumstances, might justify an after-acquired evidence defense, the Eighth Circuit emphasized that the employer must nevertheless prove that it would have terminated the employee because of the newly discovered evidence. Sellers, 358 F.3d at 1063-64. In determining whether the employer has met this burden, the court "must look to the employer's actual employment practices and not merely the standards articulated in its employment manuals." Id. at 1064. Intentionally filing false tax returns is criminal conduct, see 26 U.S.C. 7206; if the jury finds that Browne Sanders engaged in such conduct, a reasonable fact-finder might well find that an employer becoming aware of such conduct would dismiss her. But if the jury finds that Browne Sanders, as she claims, filed inaccurate returns by mistake, her failure to amend her 2001 and 2002 tax returns, which the jury could find was based on the advice of qualified tax professionals that such amendment was not required by law, is a much less serious matter, if indeed it constitutes misconduct at all. None of defendants' examples of employees dismissed for misconduct is remotely comparable to this, and defendants point to no express policy of MSG that clearly covers Browne Sanders's actions in 2006. Whether defendants' argument is sufficiently supported, in fact or law, to be permitted at trial at all can be decided at a later time, but under no circumstances can it support a summary ruling limiting plaintiff's damages as a matter of law. Accordingly, defendants' summary judgment motion to limit plaintiff's potential damages based upon after-acquired evidence is denied. B. Reputational Damages 23 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 24 of 55 Next, all three defendants move for summary judgment on plaintiff's claim for "reputational damage." (Am. Compl., Prayer for Relief, at (d).) Defendants argue that damages for reputational injury are not recoverable under Title VII, but instead are only recoverable for defamation, a claim plaintiff has not pleaded and has expressly disavowed. (Tr. 9.) Alternatively, defendants argue that plaintiff has not provided any evidence that she suffered reputational injury due to defendants' allegedly unlawful conduct. Plaintiff argues that she may recover for reputational injury under Title VII if such injury causes harm to her future earning capacity, and that issues of fact exist as to whether defendants' conduct caused such damage. The Court agrees with plaintiff. Title VII authorizes compensatory damages for a plaintiff's "future pecuniary losses." 42 U.S.C. 1981a(b)(3).7 The Second Circuit has not ruled on whether "reputational damage" is specifically recoverable under Title VII as a form of future pecuniary loss. However, at least one court in this district has recently held, without discussion, that reputational injury is compensable under Title VII. See Osorio v. Source Enters., Inc., No. 05 Civ. 10029, 2007 WL 683985, at *12, 5 (S.D.N.Y. Mar. 2, 2007) (upholding a jury award of four million dollars for emotional distress and "harm to reputation"). In addition, the Seventh Circuit has held that injury to an employee's reputation is compensable under Title VII where such injury negatively impacts the employee's "lost future earnings." Williams v. Pharmacia, Inc., 137 F.3d 944, 954 (7th Cir. 1998). According to The Title VII damages analysis also applies to plaintiff's SHRL and CHRL claims. See Cruz v. Coach Stores, 202 F.3d 560, 565 n.1 (2d Cir. 2000) ("[C]onsideration of claims brought under the state and city human rights law parallels the analysis used in Title VII claims.") (citations omitted). 24 7 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 25 of 55 Williams, an award for reputational damages "compensates [the plaintiff] for a lifetime of diminished earnings resulting from the reputational harm she suffered" as a result of the employer's unlawful conduct. Id. at 953. Thus, where an employee can expect to encounter increased difficulty in finding comparable employment due to "injury to [her] professional standing" caused by an employer's unlawful conduct, the employee may recover for the added difficulty in the form of compensatory damages. Id. at 952, citing EEOC Policy Guidances on Damages Provisions of 1991 Civil Rights Act, 8 FEPM 405:7091, 7095. Defendants argue that reputational damages are only recoverable in New York as part of a defamation claim. (MSG Mem. 24-25; Mem. of Law of Def. Isiah Thomas In Support of His Mot. for Partial Summ. J. ("Thomas Mem.") 15-18.) Specifically, defendants argue that "when dealing with loss of reputation alone, a state law defamation action for damages is the appropriate means of vindicating that loss." (Thomas Mem. 15, citing Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004).) Defendants assert that plaintiff's reputational injury claim is merely an attempt by plaintiff to "bootstrap" a defamation claim to her discrimination suit. (Thomas Mem. 14.) Thus, defendants argue that plaintiff cannot recover for her reputational injury because she has not stated a claim for defamation. The parties' respective concessions at oral argument, however, have considerably narrowed, if not eliminated entirely, their disagreement. Plaintiff acknowledged that she does not seek to recover for injury to reputation distinct from her Title VII claims for lost future earnings. (Tr. 9.) Rather, plaintiff seeks to offer evidence of injury to reputation only insofar as defendants' alleged retaliatory conduct has damaged her "career prospects" and caused her to "los[e] future earnings." (Pl. Mem. of Law in Opp'n to Isiah Thomas' Mot. for Partial Summ. J. 25 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 26 of 55 ("Pl. Opp'n Mem. II") 21.) Plaintiff's claim is thus not, as defendants argue, "defamation in disguise." (Thomas Mem. 16.) A defamation claim seeks to compensate a plaintiff for the noneconomic loss of "reputation alone." Patterson, 370 F.3d at 330. The jury is asked to place a value on the plaintiff's "good name," which, as Iago explained, when "filche[d]," renders the victim "poor indeed." William Shakespeare, Othello, act 3, sc. 3. But plaintiff here does not seek redress for any damage to her general reputation in the community; instead, plaintiff argues that loss of business reputation is a factor to be considered in assessing purely economic losses resulting from her allegedly retaliatory dismissal. (See Tr. 22 ("It is our position . . . [that] reputational damages . . . is part of [our] compensatory damage claim . . . under Title VII.").) She has specifically disavowed the notion that her reputational damages claim should be interpreted either as a defamation claim or as a separate retaliation claim. (Pl. Opp'n Mem. II 15-16; see Tr. 9.) Defendants, in turn, although arguing in their motion papers that a plaintiff cannot receive damages for reputational injury outside of the defamation law framework, nevertheless conceded at oral argument that a Title VII plaintiff may recover for reputational injury to the extent that such an injury negatively impacts an employee's future earnings capacity, regardless of whether the plaintiff has stated a claim for defamation. (Tr. 18 ("I think the case law recognizes that [reputational damages] may be recovered [under Title VII]"); id. 21 "([L]ost future earnings may . . . be recovered as front pay . . . .").) Therefore, to the extent that defendants seek summary judgment on plaintiff's reputational damages claim based on the argument that she has not stated a claim for defamation, that argument was rendered moot by the 26 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 27 of 55 parties' concessions at oral argument.8 In any event, defendants' concession that harm to a plaintiff's reputation may be recoverable under Title VII as part of a front pay award was well-considered. The Seventh Circuit's reasoning in Williams, although not binding on this Court, is highly persuasive.9 There is no conceptual barrier between allowing a Title VII plaintiff to recover for future losses and allowing a Title VII plaintiff to present evidence of reputational injury in order to accurately quantify that loss. Indeed, there is significant overlap between the two considerations. Although Thomas's argument in his motion papers that he cannot be held liable for reputational damages because his press statements were privileged under defamation law (see Thomas Mem. 16-18) was also rendered moot at oral argument. (Tr. 22.) Defendants argue that the Court should not adopt the Williams holding because that case framed reputational damages as a form of non-pecuniary loss under Title VII, thereby allowing plaintiffs to "double-dip" with respect to future economic losses by claiming both front pay, a form of pecuniary damage, and reputational damages. (Thomas Reply 7, 8.) Defendants' argument is unavailing. First, to the extent that Williams held that reputational damages are a form of non-pecuniary loss, 137 F.3d at 953, the Court rejects that finding, as has the Seventh Circuit in a subsequent case: "The standard legal remedy of an award of lost future earnings [is] indistinguishable as a practical matter from front pay . . . ." Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 771 (7th Cir. 2006). Thus, there is no potential for "double dipping" here because lost future earning capacity is properly considered a factor within a front pay award. See Gentile v. County of Suffolk, 926 F.2d 142, 153 (2d Cir. 1991) ("[W]hen a plaintiff seeks compensation for the same damages under different legal theories of wrongdoing, the plaintiff should receive compensation for an item of damages only once."). However, rejecting the reasoning of Williams wholesale would be tantamount to throwing the baby out with the bathwater. Williams is persuasive insofar as it found that a plaintiff may be entitled to reputational damages when such damages are considered as a factor within an award for loss of future earning capacity; this reasoning is sound, regardless of whether the damage is labeled pecuniary or non-pecuniary, and has been applied by other district courts within this Circuit. See Mahony v. KeySpan Corp., No. 04 Civ. 554, 2007 WL 805813, at *7 (E.D.N.Y. Mar. 12, 2007) ("When reputational injury caused by an employer's unlawful discrimination diminishes a plaintiff's future earnings capacity, [she] cannot be made whole without compensation for the future earnings [she] would have received absent the employer's unlawful activity."), quoting Williams, 137 F.3d at 953; see id. (denying defendant's request to strike plaintiff's demand for reputational damages in a Sarbanes-Oxley suit). 27 9 8 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 28 of 55 not every violation of Title VII results in an injury to an employee's reputation, where an employer's allegedly unlawful conduct is publicized or highly visible, either in society at large or within a specific industry, such conduct may negatively affect the employee's ability to secure future employment. For example, the employee may be deemed too controversial, or prospective employers may base their hiring decisions on accusations that came out during the course of the litigation, regardless of the legitimacy of those accusations. It is undisputed that the circumstances surrounding plaintiff's termination in this case have been widely publicized. (See Tr. 24.) Thus, preventing plaintiff from presenting such evidence here would artificially limit her damages, as the damages award would not accurately reflect plaintiff's actual future earning capacity. Defendants also argue that plaintiff's evidence is insufficient as a matter of law to establish that her reputation has been damaged. Specifically, defendants argue that "there is nothing" in the record "to indicate a causal nexus between" defendants' allegedly unlawful conduct and plaintiff's "failure to obtain employment." (Thomas Reply 10.) Defendants' argument is unavailing. Plaintiff has submitted her own testimony, as well as the testimony of Jeffrey Nix, Director of Scouting for the Knicks, in support of her argument. (See Pl. Aff. 3-4; Pl. Dep. 465-67, 482-83; Nix Dep. 246-49.) Browne Sanders testified that, while interviewing for jobs after she was terminated from the Knicks, she has been "asked repeatedly about the circumstances of [her] separation from MSG," and specifically asked about her lawsuit. (Pl. Aff. 4.)10 A reasonable fact finder could determine that prospective Defendants object to the recruiters' statements as inadmissible hearsay; however, plaintiff does not offer the statements for their truth, but as evidence that prospective employers are aware of and interested in plaintiff's termination from the Knicks. (See Tr. 24.) 28 10 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 29 of 55 employers who questioned Browne Sanders about her lawsuit and subsequently failed to offer her a job were motivated to deny her employment at least in part by their reaction to her termination and the surrounding public controversy. Indeed, defendants conceded at oral argument that plaintiff's evidence presents a "weak inference" between her termination from the Knicks and her inability to find comparable employment. (Tr. 26.) The strength or weakness of plaintiff's evidence should not be weighed on a motion for summary judgment; as long as plaintiff has provided sufficient evidence from which a reasonable trier of fact could determine that plaintiff has suffered reputational injury, whether or not plaintiff should recover damages for that injury is an issue for the fact finder at trial.11 Finally, defendants Thomas and Dolan argue that they cannot be liable to plaintiff for reputational damages because neither of them participated in any activity that could have caused injury to her reputation. Specifically, Thomas argues that plaintiff's sexual harassment claim involves "private encounters" between himself and plaintiff, and as such could not have injured her professional reputation (Thomas Mem. 18), and Dolan argues that he "made no statements whatsoever to the media regarding Plaintiff's lawsuit" (MSG Mem. 25). Both arguments are inapposite. Plaintiff claims that her reputation was injured by her termination itself as well as by the press statements made after her termination. (Pl. Opp'n Mem. II 16 ("While a jury could find that the public statements that Thomas . . . made about plaintiff after she filed this suit have compounded plaintiff's reputational injury, the underlying cause of [that injury] is the Defendants assert that plaintiff's failure to name experts or identify witnesses that can testify to her reputational injury dooms her claim. (Thomas Reply 10.) However, while such testimony could bolster plaintiff's claim, it is not required for plaintiff to survive summary judgment. Expert testimony is not required for a fact finder to infer a causal link between questions about plaintiff's dispute with MSG and the subsequent failure to offer plaintiff a job. 29 11 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 30 of 55 discriminatory and retaliatory conduct that resulted in plaintiff's dismissal.").) A jury could reasonably find that Browne Sanders's lawsuit and the ensuing public controversy were, under the circumstances, reasonably foreseeable consequences of her termination. Thus, to the extent a jury finds that both Dolan and Thomas participated in a retaliatory termination that has potentially damaged plaintiff's reputation and limited her ability to mitigate economic damages resulting from her firing, both may be liable for the ensuing damages. Accordingly, defendants' motion for summary judgment on plaintiff's reputational damages claim is denied. III. The Retaliation Claim A. Plaintiff's Motion Plaintiff contends that, based on the current record, "a jury would be compelled to find that [defendants] dismissed [her] because she engaged in protected activity." (Pl. Mem. 11.) Defendants, however, argue that they have presented evidence creating issues of material fact with respect to several elements of plaintiff's claim. Because the Court agrees that issues of fact preclude summary judgment on plaintiff's retaliation claim, plaintiff's motion will be denied. Section 704(a) of Title VII states that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. 2000e-3(a). To state a prima facie case of retaliation, plaintiff must show that: (1) she engaged in a protected activity; (2) defendant was aware of that activity; (3) she suffered an adverse employment action; and (4) there was a causal 30 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 31 of 55 connection between the protected activity and the adverse action. See Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996). If plaintiff satisfies the prima facie test for retaliation, the burden shifts to the employer to show a legitimate, non-retaliatory reason for the adverse employment action. Davis v. State Univ. of N.Y., 802 F.2d 638, 641 (2d Cir. 1986). If the employer satisfies this burden, the presumption of retaliation drops from the case, and the burden shifts back to plaintiff to show that the employer's legitimate, non-retaliatory reason for the adverse employment action is actually a pretext for retaliation. Id. Browne Sanders argues that Dolan's testimony conclusively establishes that she was fired because of her complaints of sexual harassment. The argument is not without force. Unlike the typical Title VII termination plaintiff, who argues that she was fired for retaliatory (or discriminatory) reasons, while the defendant employer contends that the plaintiff was fired for performance reasons entirely unrelated to her complaints of unequal treatment, Browne Sanders has the benefit of Dolan's testimony that (1) he personally and unilaterally decided to fire Browne Sanders (Dolan Dep. 85, 87); (2) although he was dissatisfied with her performance, he would not have fired her for performance-related reasons, but for her actions in connected to her complaints of discrimination, which were the "last straw" that led to her termination (id. 190, 192, 200-02). Plaintiff thus argues that Dolan's testimony amounts to a conclusive admission of retaliatory firing. Defendants argue that, despite this testimony, plaintiff has not established as a matter of law that her termination was the result of unlawful retaliation. In general, they argue that Dolan's testimony (which is not entirely clear or consistent) should not be read as conceding that 31 Case 1:06-cv-00589-GEL-DCF Document 114 Filed 08/06/2007 Page 32 of 55 Browne Sanders was fired for complaining about sexual harassment, but as asserting that she was fired for what he regarded as her bad faith efforts to obstruct the investigation of her complaints by pressuring her subordinates to support her case, and her bad faith efforts to "extort" money from MSG (Def. Resp. 20) by deliberately false accusations in which she herself did not believe. In specific legal terms, defendants thus argue that there are issues of fact about (1) whether Browne Sanders held a good faith belief that she was subjected to sexual harassment, and (2) whether she was fired because of her sexual harassment complaint or for legitimate, non-retaliatory reasons. 1. Protected Activity Defendants' first argument is that even if Browne Sanders was fired for her actions in connection with her allegations of sexual harassment, factual issues remain about whether those actions constituted protected activity. In the most common type of retaliation case, although plaintiff "need not establish that the conduct [s]he opposed was in fact a violation of Title VII" to show that she engaged in protected activity, Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988), plaintiff must show that she had a "good faith, reasonable belief" for making the complaint. Id. In other words, to establish her retaliation claim, Browne Sanders need not prove that Thomas's actions actually amounted to unlawful discriminatory conduct. She could not legally be fired for complaining about Thomas's alleged sexual harassment, even if his actions did not amount to illegal sexual harassment, provided that she had a good faith, reasonable belief that it did. A deliberately false allegation concocted in bad faith, or a complaint about conduct that no reasonable person would believe was actionable discrimination, however, confers no protection. Thus, the relevant inquiry is: (1) whether, 32 Case 1:06-cv-00589-GEL-DC

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