Edelman v. NYU Langone
Citation141 F.4th 28
Date Filed2025-06-18
Docket24-251
Cited22 times
StatusPublished
Full Opinion (html_with_citations)
24-251-cv
Edelman v. NYU Langone et al.
United States Court of Appeals
For the Second Circuit
August Term 2024
Argued: January 7, 2025
Decided: June 18, 2025
No. 24-251-cv
DR. SARI EDELMAN,
Plaintiļ¬-Appellant,
v.
NYU LANGONE HEALTH SYSTEM; NYU LANGONE
HOSPITALS; NYU LANGONE MEDICAL CENTER; NYU
LANGONE NASSAU RHEUMATOLOGY; NYU SCHOOL OF
MEDICINE; NYU GROSSMAN SCHOOL OF MEDICINE;
NYU HOSPITALS CENTER; ANDREW T. RUBIN; DAVID
KAPLAN; JOSEPH ANTONIK; JOSHUA SWIRNOW,
Defendants-Appellees. *
*The Clerkās Oļ¬ce is respectfully directed to amend the caption as reļ¬ected
above.
Appeal from the United States District Court
for the Southern District of New York
No. 1:21CV00502, Lewis Liman, Judge.
Before: WALKER, ROBINSON, and MERRIAM, Circuit Judges.
Plaintiļ¬-appellant Dr. Sari Edelman, a female rheumatologist formerly
employed by the New York University hospital system, sued various NYU
entities (collectively, āNYUā), as well as individual NYU employees Andrew
Rubin, David Kaplan, Joseph Antonik, and Joshua Swirnow, after her
employment was terminated following disputes with Antonik and Kaplan.
Edelman asserted claims for violation of the New York and federal Equal Pay
Acts, and for gender discrimination and retaliation under Title VII, the New York
State Human Rights Law, and the New York City Human Rights Law.
The matter proceeded to a jury trial. The District Court granted, in part, a
motion for judgment as a matter of law (āJMOLā) at the close of the evidence,
entering judgment in favor of Kaplan on all claims of retaliation; in favor of
Kaplan, Rubin, and Swirnow on all claims of discrimination; and in favor of all
defendants as to willfulness on the equal pay claims and as to punitive damages.
The remaining claims of retaliation, discrimination, and equal pay proceeded to
the jury. The jury found in favor of Edelman on her retaliation claims against
NYU and Antonik and awarded Edelman $700,000 in damages; the jury found in
favor of defendants on all other claims. After trial, the District Court granted
judgment notwithstanding the verdict (āJNOVā) in favor of defendants, vacating
the verdicts in favor of Edelman. The District Court denied Edelmanās cross-
motion for JNOV on her equal pay claims.
We conclude that there was suļ¬cient evidence to support the juryās
verdicts in Edelmanās favor, and that there was suļ¬cient evidence to permit the
retaliation claim against Kaplan to proceed to the jury. Accordingly, we
VACATE the District Courtās grant of JNOV for Antonik and NYU on Edelmanās
retaliation claims, and REMAND with instructions to reinstate the juryās verdict
2
on these claims. We further VACATE the District Courtās decision granting
JMOL in favor of Kaplan on the retaliation claim, and remand for a new trial on
that claim. We AFFIRM the judgment as to the remaining claims.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
JOSEPH MARTIN LABUDA, Milman Labuda Law
Group PLLC, Lake Success, NY, for Plaintiļ¬-
Appellant.
RICHARD S. SCHOENSTEIN (Richard Lane Steer,
Justin Y. K. Chu, Ingrid Julieth Cardona, on the
brief), Tarter, Krinsky & Drogin LLP, New York,
NY, for Defendants-Appellees.
SARAH A. L. MERRIAM, Circuit Judge:
Dr. Sari Edelman is a female rheumatologist who was previously
employed by the New York University (āNYUā) hospital system. After working
for NYU for almost ļ¬ve years without any disciplinary issues, Edelman had a
dispute with Joseph Antonik, the Site Director for NYUās Lake Success location,
about her oļ¬ce space. At trial, Edelman testiļ¬ed that during a heated
discussion, Antonik uttered a gender-based slur under his breath and behaved
aggressively toward her. Edelman lodged a complaint with NYU human
resources the day after the incident. She lodged another complaint with NYU
human resources about a week later, after a male supervisor, David Kaplan,
3
spoke with her about the oļ¬ce space issue in a manner that Edelman perceived
as discriminating against her based on her gender. Edelman pursued her
complaints against Antonik and Kaplan, describing them as relating to
ātreatment of females within [the] workplace at NYU.ā Supp. Appāx at 280. The
following year, Edelmanās employment contract was not renewed and her
employment with NYU was terminated.
Edelman brought this action against various NYU entities, 1 as well as
Andrew Rubin, David Kaplan, Joseph Antonik, and Joshua Swirnow, asserting,
as relevant here, the following claims: (1) violation of the Equal Pay Act (āEPAā),
29 U.S.C. Ā§206(d), and the New York State Equal Pay Act (āNew York EPAā),
New York Labor Law (āNYLLā) Ā§194, against NYU, Swirnow, and Rubin;
(2) retaliation in violation of Title VII, 42 U.S.C. Ā§2000e, against NYU; (3)
retaliation in violation of the New York State Human Rights Law (āNYSHRLā),
New York Executive Law Ā§296(1)(a), and the New York City Human Rights Law
(āNYCHRLā), New York City Administrative Code Ā§8-107(7), against all
1We refer to NYU Langone Health System, NYU Langone Hospitals, NYU
Langone Medical Center, NYU Langone Nassau Rheumatology, NYU School of
Medicine, NYU Grossman School of Medicine, and NYU Hospitals Center
collectively as āNYUā in this opinion.
4
defendants; and (4) gender discrimination (under both direct and aiding-or-
abetting theories) in violation of the NYCHRL, against all defendants.
After trial, the jury found for defendants on Edelmanās federal and state
EPA claims, and the District Court properly denied Edelmanās post-trial motion
for judgment notwithstanding the verdict (āJNOVā) on those claims. We aļ¬rm
the District Courtās denial of Edelmanās motion for JNOV on her EPA claims.
Before the case was submitted to the jury, the District Court granted
judgment as a matter of law (āJMOLā) in favor of Kaplan on Edelmanās
retaliation claim against him. The retaliation claims against NYU and Antonik
went to the jury, which found in Edelmanās favor and awarded her $700,000 in
compensatory damages. However, the District Court then granted defendantsā
motion for JNOV on those claims. Because we conclude that the evidence at trial
was suļ¬cient to permit a reasonable jury to ļ¬nd in favor of Edelman on her
claims of retaliation against NYU, Antonik, and Kaplan, we vacate the District
Courtās decisions granting JMOL in favor of Kaplan and JNOV in favor of
Antonik and NYU. We remand with instructions for the District Court to
reinstate the juryās verdict on the retaliation claims against Antonik and NYU,
and we remand for a new trial on the retaliation claims against Kaplan.
5
I. BACKGROUND
The NYU hospital system recruited Edelman to join its Lake Success oļ¬ce
on Long Island in 2014. Edelman negotiated her initial three-year employment
contract with Joshua Swirnow, the Vice President of Ambulatory Care and
Business Strategy, and Andrew Rubin, the Senior Vice President of Clinical
Aļ¬airs and Ambulatory Care. In 2017, her contract was renewed for another
three-year term.
At trial, Edelman testiļ¬ed to the following events. On September 16, 2019,
Joseph Antonik, the Site Director for NYUās Lake Success location, visited
Edelmanās oļ¬ce. During that visit, Antonik told Edelman that NYU had hired a
new rheumatologist who would need to use her oļ¬ce two days a week.
Edelman told Antonik that she needed to review her employment contract with
her attorney because she did not think her contract allowed NYU to require her
to share an oļ¬ce. At that point, Antonikās demeanor changed. He started
āļ¬ailing his armsā and, pointing at items in Edelmanās oļ¬ce, said: āAll of it
belongs to NYU, this whole oļ¬ce. None of itās yours. We ā we own you.ā
Appāx at 1206. āDuring his rant [Antonik] uttered, under his breath, bitch.ā Id.
Edelman told Antonik to leave, and he did.
6
The following day, September 17, 2019, Edelman made a verbal complaint
āover the phoneā to Kathleen Pacina, an NYU human resources manager. Appāx
at 1209. Edelman described the complaint as follows: āMy complaint was about
the, the hostile and abusive behavior that had occurred the day before with
[Antonik]; that I didnāt feel safe and I wanted it rectiļ¬ed; that I felt that it was a
sexist, discriminatory, chauvinistic attack and it needed to be addressed with
HR.ā Appāx at 1210 (sic). Edelman testiļ¬ed that she āwent through the events of
what happenedā during her conversation with Pacina, id., explaining to Pacina
the events that she had ājust described to the juryā in her testimony, Appāx at
1211.
After the call from Edelman, Pacina emailed Claudia Rose, another human
resources employee, to discuss Edelmanās complaint. Rose indicated that
complaints from faculty members āneed to be escalated to leadership,ā Appāx at
2835, but Pacina communicated that she āwanted to discuss [Edelmanās
complaint] with [Rose] before bringing it to leadership as it is about Joe
Antanik.ā Appāx at 2834 (sic).
Pacina and Rose discussed the complaint the following morning, on
September 18, 2019. Rose also conferred with Antonik, who told her that he had
7
āalready escalated to David Kaplan.ā Appāx at 2833. Pacina then spoke to
Antonik about the incident; he claimed that āhe didnt raise his armsā and
asserted that Edelman had been ādefensive and snide.ā Supp. Appāx at 236 (sic).
Pacina advised Antonik that she would speak to Kaplan, which she did later that
day. After the call from Pacina, Kaplan emailed Swirnow, describing the
situation as follows: āEdelman ļ¬led a complaint against Joe Antonik for being
aggressive and retaliating for not allowing her to expand her hours.ā Appāx at
3229. Swirnow responded that Edelman āis busy so we should look at it. We can
deļ¬nitely put someone in her oļ¬ce when sheās not there but I would like to
review her schedule and the space plan before we revisit.ā 2 Id. Kaplan testiļ¬ed
that he also discussed the issue with Swirnow in person, and that Swirnow
āsuggested [a] followup conversation withā Edelman. Appāx at 1684.
Edelman did not receive any response from Pacina regarding her
September 17, 2019, complaint before the next incident, which occurred on
September 25, 2019. Edelman testiļ¬ed at trial that on the evening of September
25, 2019, Kaplan interrupted her while she was working with patients, saying
2Antonik had previously notiļ¬ed Kaplan and Swirnow about his meeting with
Edelman shortly after it occurred on September 16, 2019. In his email to Kaplan
and Swirnow, Antonik asserted that Edelman ābecame very defensiveā when he
spoke to her about sharing her oļ¬ce space. Supp. Appāx at 350.
8
āwe need to talk now.ā Appāx at 1212-13. Edelman further testiļ¬ed that Kaplan
told her: ā[Y]ouāre going to need to give your space up Thursdays and Fridays,
and we looked at your contract and this is what it says.ā Appāx at 1213.
Edelman became upset and told Kaplan that she needed to speak to Swirnow
and Rubin, who had signed her contract, and to her attorneys. She testiļ¬ed:
āAnd when I started to get upset when Mr. Kaplan was in the room with me, he
started to say: Doctor. Doctor, calm down. Calm down, Doctor.ā Appāx at 1215.
Edelman felt his behavior āwas very demeaningā and āpatronizingā to her, and
she told him to leave. Id.
That night, Edelman sent an email to Pacina describing the incident with
Kaplan. The email stated that Kaplan ātook on similar mannerisms [to Antonik]
of condescending tone, raising his voice to child-like manner to placate my
disagreement.ā Appāx at 1218. The email also stated:
As a female physician in the organization, I am disappointed that it is
2019, approaching 2020, in a major hospital organization in New York,
and I still have to contend with male chauvinism. . . . It remains
unclear to me why I am being discriminated against to accommodate
another physician, particularly a male physician, who will be joining
the practice, which is the stated reason I will be pushed out to another
space. . . . This is the ļ¬rst time in all these years where I feel my
growth as a physician is being deliberately infringed on by senior
male managers.
9
Appāx at 1219. Pacina did not respond to Edelman; she did, however, inform
Kaplan that Edelman had made a complaint against him.
On September 26, 2019, Edelman emailed Pacina again because Swirnow
and Kaplan had asked to speak with her, and she āwould appreciate if you or an
HR representative can be involved in this conversation.ā Supp. Appāx at 281.
Edelman did not receive a response until October 8, 2019. See id.
The following day, September 27, 2019, Edelman spoke with Swirnow, and
they came up with a solution regarding the oļ¬ce space. However, Edelman
informed Swirnow that she āwas going to maintain or keep the HR complaintā
because āthe issue of oļ¬ce space was an independent situation to the HR
complaint.ā Appāx at 1224.
On October 8, 2019, Pacina emailed Edelman, saying: āI understand that
you met with Mr. Swirnow and he explained the rationale for oļ¬ce use one day
[per] week when you are not at Marcus Avenue. Please let me know if you
would like to discuss further.ā Supp. Appāx at 281. Edelman did not respond
until October 23, 2019, when she emailed Pacina to inquire about the status of her
ācomplaint requesting investigation for workplace harassment.ā Supp. Appāx at
280-81. She did not receive a response. On November 1, 2019, Edelman followed
10
up with an email to Pacina explaining:
The harassment complaint was extensive detailed letter about
treatment by manager using abusive and bullying behavior. While I
spoke with Joshua Smirnow about the oļ¬ce space, I also was clear
that the complaint was separate issue about treatment of females
within workplace at NYU which is unacceptable moving into 2020.
There was clearly implicit bias in how I was āmanagedā and spoken
to in a manner clearly not appropriate by Joe Antonik and David
Kaplan.
Supp. Appāx at 280 (sic). On November 5, 2019, Pacina responded to Edelman,
acknowledging receipt of her emails and indicating that she thought āthe matter
was closed.ā Id. On November 12, 2019, Edelman followed up with Pacina again
about her complaints, conļ¬rming that the matter was not resolved and indicating
that she felt that a recent oļ¬ce move was āretaliatory to [her] complaint.ā Supp.
Appāx at 283.
The next day ā November 13, 2019 ā corresponds to the ļ¬rst dated entry on
a spreadsheet entitled āDr. Sari Edelman Issuesā that was maintained by Miriam
Ruiz, the oļ¬ce manager, who reported directly to Antonik. Appāx at 3294. At
trial, Ruiz testiļ¬ed that Antonik had asked her to start maintaining the
spreadsheet, and that she did so regarding complaints against all the doctors
who worked in the suite. The record is ambiguous as to the date Ruiz made
these entries, but the spreadsheet contained no entries dated before Edelman ļ¬rst
11
made her complaints against Antonik and Kaplan.
On November 18, 2019, Edelman emailed Pacina again to follow up about
her complaints. She received no response.
Around the same time, Edelman and her long-time colleague, Dr. Kavini
Mehta, began discussing the potential renewal of their contracts with NYU,
which were scheduled to expire at the end of 2020. In the lead-up to their prior
contract renewals in 2017, Edelman and Mehta had negotiated their contracts
together. Edelman recommended that they negotiate their contracts separately
this time, however, because she feared that she would be retaliated against in
response to her complaints. Mehta agreed, and they separately emailed hospital
administration to set up negotiations. The administration agreed to move
forward with negotiations for Mehta, but Rubin told Edelman that NYU would
ālet [her] know [their] plans.ā Appāx at 1240.
On November 6, 2020, nearly a year later, Antonik, Dr. Andrew Porges,
and Ruiz exchanged emails, in which Antonik stated: āDavid [Kaplan] requested
all information on Edleman to be sent to him today. We need a clear, convincing
summary with examples sent. . . . Ideally we want recent examples of
innappropriate behavior and communicates between Edelman, staļ¬ and
12
patients.ā Appāx at 2879 (sic). The emails included the entries on Ruizās āDr.
Sari Edelman Issuesā log. Porges sent an email to Kaplan later that day with the
information they had collected. Kaplan, in turn, emailed the information to
Swirnow, and Swirnow provided it to Rubin. Rubin testiļ¬ed that the
information in that email was āthe only thing that led to the nonrenewalā of
Edelmanās contract. Appāx at 1996.
On December 1, 2020, Edelman was notiļ¬ed that her contract would not be
renewed and that her employment with NYU would be terminated.
II. PROCEDURAL HISTORY
In January 2021, Edelman brought this action in District Court against
multiple entities within the NYU hospital system, as well as Rubin, Kaplan,
Antonik, and Swirnow, individually. In the Second Amended Complaint ā the
operative complaint at the time of trial ā Edelman asserted the following claims:
(1) equal pay under the Equal Pay Act (āEPAā), 29 U.S.C. Ā§206(d), and the New
York State Equal Pay Act (āNYS EPAā), New York Labor Law (āNYLLā) Ā§194,
against NYU, Swirnow, and Rubin; (2) retaliation in violation of Title VII, 42
U.S.C. Ā§2000e, against NYU; (3) retaliation in violation of the New York State
Human Rights Law (āNYSHRLā), New York Executive Law Ā§296(1)(a), and the
13
New York City Human Rights Law (āNYCHRLā), New York City Administrative
Code Ā§8-107(7), against all defendants; and (4) gender discrimination in violation
of the NYCHRL, against all defendants.
The matter proceeded to a jury trial in July 2023. Before the case was
submitted to the jury, the defendants moved for JMOL on all of Edelmanās
claims. The District Court granted the motion for JMOL in part, entering
judgment in favor of Kaplan on all claims of retaliation; in favor of Kaplan,
Rubin, and Swirnow on all claims of discrimination; in favor of all defendants as
to willfulness under the equal pay laws; and in favor of all defendants as to
punitive damages. The remaining claims of retaliation, discrimination, and equal
pay were submitted to the jury. The jury found in favor of Edelman on her
retaliation claims against NYU and Antonik and awarded Edelman $700,000 in
compensatory damages. The jury found for defendants on all other claims before
it.
After the jury returned its verdict, the parties ļ¬led cross-motions for
judgment notwithstanding the verdict (āJNOVā). The District Court denied
Edelmanās motion, but granted defendantsā motion, vacating the juryās verdict
14
and damages award in favor of Edelman on her retaliation claims against NYU
and Antonik. Edelman timely appealed.
On appeal, Edelman argues that the District Court improperly denied her
motion for JNOV on her state and federal equal pay claims, erred in granting
JNOV on her retaliation claims against Antonik and NYU, and erred in granting
the defendantsā motion for JMOL on her retaliation claims against Kaplan. We
address each argument in turn.
III. EDELMANāS MOTION FOR JNOV OR A NEW TRIAL ON HER
EQUAL PAY CLAIMS
Edelman argues that the District Court improperly denied her motion for
JNOV or, in the alternative, for a new trial on her federal and state equal pay
claims. We disagree.
āWe review the denial of a Rule 50 motion de novo.ā S.E.C. v. Ginder, 752
F.3d 569, 574(2d Cir. 2014) (citation omitted). A Rule 50 motion for JNOV āmay only be grantedā in favor of a plaintiļ¬ if āthe evidence in favor of the movant is so overwhelming that reasonable and fair minded persons could not arrive at a verdict against it.ā Brady v. Wal-Mart Stores, Inc.,531 F.3d 127, 133
(2d Cir. 2008)
(citation and quotation marks omitted).
A party has two opportunities to seek judgment as a matter of law during
15
trial. Under Rule 50(a), a party may move for JMOL āat any time before the case
is submitted to the jury.ā Fed. R. Civ. P. 50(a)(2). If the Rule 50(a) motion is not
granted before the matter is submitted to the jury, and the jury ļ¬nds against the
movant, the movant may renew its motion after trial under Rule 50(b) as a
motion for JNOV. āA post-trial Rule 50(b) motion for judgment as a matter of
law is properly made only if a Rule 50(a) motion for judgment as a matter of law
has been made before submission of the case to the jury.ā Bracey v. Bd. of Educ. of
Bridgeport, 368 F.3d 108, 117(2d Cir. 2004). 3 If a party fails to move under Rule 50(a) before the matter is submitted to the jury but ālater moves under Rule 50(b), the standard for granting judgment as a matter of law is elevated, and the motion may not properly be granted by the district court, or upheld on appeal, except to prevent manifest injustice.ā ING Global v. United Parcel Serv. Oasis Supply Corp.,757 F.3d 92, 97
(2d Cir. 2014). āManifest injustice exists where a juryās verdict is wholly without legal support.āId.
Edelman did not move for judgment as a matter of law under Rule 50(a)
before the case was submitted to the jury. Consequently, she must demonstrate
3A motion for JNOV under Rule 50(b) is also sometimes referred to as a post-trial
or renewed motion for judgment as a matter of law. We use the term JNOV in
this opinion to clearly distinguish between the motions made prior to the juryās
deliberations and the motions made after the verdict was received.
16
manifest injustice to prevail on appeal. See id. Edelman has failed to do so.
To establish a claim under the federal EPA, a plaintiļ¬ must demonstrate
that: āi) the employer pays diļ¬erent wages to employees of the opposite sex; ii)
the employees perform equal work on jobs requiring equal skill, eļ¬ort, and
responsibility; and iii) the jobs are performed under similar working conditions.ā
Eisenhauer v. Culinary Inst. Am., 84 F.4th 507, 523(2d Cir. 2023) (citation and quotation marks omitted). Although Edelmanās claim under New Yorkās EPA is āaltogether distinctā from her claim under the federal EPA, for purposes of the issues here, the two statutes encompass the same elements. Seeid. at 524-26
. 4
In support of her EPA claims, Edelman oļ¬ered evidence that Dr. Anang
Modi, a male rheumatologist at the practice, was paid more than she was. We
assume that Edelman and Modi were subject to similar working conditions.
Nevertheless, the jury could reasonably have concluded that Edelman failed to
show that she and Modi āperform[ed] equal work on jobs requiring equal skill,
eļ¬ort, and responsibility.ā Id. at 523. 4The New York and federal EPAs vary in the applications of certain aļ¬rmative defenses, and the New York EPA prohibits pay discrimination on the basis of membership in other protected classes in addition to sex, but these diļ¬erences are not relevant here. See Eisenhauer,84 F.4th at 525
(discussing diļ¬erences
between the two statutes in the bona-ļ¬de-factor-other-than-sex defense).
17
The jury could reasonably have concluded that Edelman failed to
demonstrate that she and Modi possessed equal skill. In determining whether
the employees possess equal skill, we consider āsuch factors as experience,
training, education, and ability,ā measured āin terms of the performance
requirements of the job.ā EEOC v. Port Auth. of N.Y. and N.J., 768 F.3d 247, 255(2d Cir. 2014) (quoting29 C.F.R. Ā§1620.15
(a)) (emphasis omitted). Modi had two
more years of experience than Edelman, and he also had demonstrated
leadership skills. Prior to joining NYU, Modi served as Chief Rheumatologist for
a multi-specialty medical group of 500 physicians, where he supervised six
rheumatologists. He also previously served as a medical director, which
required him to supervise ļ¬fteen physicians, twelve non-physician medical
professionals, and several support staļ¬. Edelman presented no evidence of
comparable experience prior to joining NYU.
The jury was also entitled to conclude that Edelman had failed to
demonstrate that she and Modi exerted equal āeļ¬ort.ā āEļ¬ortā under the federal
EPA is not a measure of personal commitment, but instead ālooks to āthe
measurement of the physical or mental exertion needed for the performance of a
job.āā Id.(quoting29 C.F.R. Ā§1620.16
(a)) (emphasis omitted). This measurement
18
considers the amount of eļ¬ort involved in a job, and a diļ¬erence in wages does
not violate the law when it is ābased on diļ¬erences in the . . . amount of eļ¬ort
requiredā for a job. 29 C.F.R. Ā§1620.16(b). Modiās annual production target was
6,100 relative value units (āRVUsā), which put him in the top ten percent of
rheumatologists in the country, while Edelmanās target was 5,200 RVUs. 5 Modi
saw patients ļ¬ve days a week, while Edelman saw patients fewer than four days
a week. These diļ¬erences in the amount of eļ¬ort required could readily defeat
Edelmanās claim.
In sum, the jury could reasonably conclude on the record before it that
Edelman failed to establish that she and Modi possessed equal skill and exerted
equal eļ¬ort; as such, the juryās verdict against her on her federal and New York
EPA claims was not āwholly without legal support.ā ING Global, 757 F.3d at 97.
Accordingly, we aļ¬rm the District Courtās denial of Edelmanās motion for
judgment as a matter of law as to these claims. 6
5RVUs are based on the time and intensity required to provide a particular
service. See 42 U.S.C. Ā§1395w-4(c)(2)(C)(i).
6Edelman also argues that the District Court erred by declining to give her
requested charge to the jury regarding the disparate impact aļ¬rmative defense
under the New York EPA. āWe review challenges to a district courtās jury
instructions de novo. We will overturn a verdict on a challenge to jury
instructions only if (1) the instructions were erroneous, and (2) the error was
19
IV. DEFENDANTSā MOTIONS FOR JMOL AND JNOV
Edelman challenges the District Courtās grant of defendantsā motion for
JMOL on her claims for punitive damages and her retaliation claims against
Kaplan; she also challenges its grant of defendantsā motion for JNOV on her
retaliation claims against NYU and Antonik. 7 Again, we review de novo. See
Cash v. Cnty. of Erie, 654 F.3d 324, 332 (2d Cir. 2011) (āWe review de novo a district
courtās decision to grant a Rule 50 motion for judgment as a matter of law.ā).
A. Punitive Damages
Edelman contends that the District Court erred by granting JMOL in favor
of defendants on her claims for punitive damages under Title VII and the
NYCHRL. āPunitive damages are available under Title VII where an employer
discriminates or retaliates against an employee with malice or reckless
prejudicial.ā Saint-Jean v. Emigrant Mortg. Co., 129 F.4th 124, 147 (2d Cir. 2025)
(citations omitted). We need not determine whether the District Courtās
instructions were erroneous. Because the jury found that Edelman failed to meet
her burden at trial of establishing the essential elements of her equal pay claims,
any possible error in declining to instruct the jury regarding limitations on the
defendantsā aļ¬rmative defenses could not have prejudiced Edelman and would be
harmless.
7Edelman does not separately challenge, on appeal, the District Courtās grant of
JMOL for defendants āon the issue of willfulness under the Equal Pay Act and
New York Equal Pay Act claims.ā Appāx at 2431.
20
indiļ¬erence to the employeeās federally protected rights.ā Tepperwien v. Entergy
Nuclear Operations, Inc., 663 F.3d 556, 572-73(2d Cir. 2011) (citation and quotation marks omitted). āA plaintiļ¬ can satisfy this burden by presenting evidence that the employer discriminated (or retaliated) against [her] with conscious knowledge it was violating the law, or that it engaged in egregious or outrageous conduct from which an inference of malice or reckless indiļ¬erence could be drawn.āId. at 573
(citation and quotation marks omitted).
A lower degree of culpability is required for punitive damages under the
NYCHRL. ā[T]he standard for determining punitive damages under the
NYCHRL is whether the wrongdoer has engaged in discrimination with willful
or wanton negligence, or recklessness, or a conscious disregard of the rights of
others or conduct so reckless as to amount to such disregard.ā Chauca v.
Abraham, 30 N.Y.3d 325, 334(2017) (citations and quotation marks omitted). While this standard is lower than the federal standard, the New York Court of Appeals has expressly rejected the idea that āa punitive damages charge is automatic on a ļ¬nding of liabilityā under the NYCHRL, instead ārequiring an appropriate showing of heightened culpability for [an award of] punitive damages.āId. at 331, 334
. Such conduct requires āa high degree of moral
21
culpability.ā Home Ins. Co. v Am. Home Prods. Corp., 75 N.Y.2d 196, 203 (1990). 8
Edelman fails to satisfy even the lower NYCHRL standard. As set forth
below, we conclude that the record supports a ļ¬nding that the defendants
retaliated against Edelman, but that is not suļ¬cient to justify an award of
punitive damages. Edelman argues that ā[t]here is not such a complete lack of
evidence with regard to punitive damages that a jury should be prevented from
considering [the issue].ā Appellantās Br. at 38-39. However, Edelman does not
point to any evidence presented at trial suggesting that any of the defendants
retaliated against her āwith willful or wanton negligence, or recklessness, or a
conscious disregard of the rights of others,ā or with a higher degree of moral
culpability than is present in every instance of retaliation in the workplace.
Chauca, 30 N.Y.3d at 334(citations and quotation marks omitted); see Appellantās Br. at 38-39; see also Reply Br. at 28-29. Nor does our search of the record reveal any such evidence. Accordingly, we aļ¬rm the District Courtās grant of judgment as a matter of law as to punitive damages. 8Home Insurance interpreted New York common law rather than the NYCHRL. But in Chauca, the New York Court of Appeals expressly adopted its approach, concluding that ā[t]he standard for punitive damages articulated in Home Ins.ā should be applied to NYCHRL claims. Chauca v. Abraham,30 N.Y.3d 325, 334
(2017).
22
B. Retaliation Claims Against NYU & Antonik
Edelman next argues that the District Court improperly vacated the juryās
verdict on her retaliation claims against NYU and Antonik. We agree.
āWe review de novo the grant of a motion for judgment as a matter of law
under Rule 50.ā Connelly v. Cnty. of Rockland, 61 F.4th 322, 325(2d Cir. 2023) (citation and quotation marks omitted). āSuch a motion may only be granted if there exists such a complete absence of evidence supporting the verdict that the juryās ļ¬ndings could only have been the result of sheer surmise and conjecture.āId.
(citation and quotation marks omitted). A court considering a Rule 50 motion āmay not weigh the credibility of witnesses or otherwise consider the weight of the evidenceā on its own. Brady,531 F.3d at 133
(quotation marks omitted). Instead, the court must consider āthe evidence in a light most favorable to the nonmovant and grant that party every reasonable inference that the jury might have drawn in its favor.ā Wolf v. Yamin,295 F.3d 303, 308
(2d Cir. 2002) (citation omitted). We also ādisregard all evidence favorable to the moving party that the jury is not required to believe.ā Olsen v. Stark Homes, Inc.,759 F.3d 140, 153
(2d
Cir. 2014) (citation and quotation marks omitted). āThe movantās burden is
particularly heavy where, as here, the jury has deliberated in the case and
23
actually returned its verdict.ā Triolo v. Nassau Cnty., 24 F.4th 98, 105 (2d Cir.
2022) (citation and quotation marks omitted).
We conclude that the District Court failed to construe the evidence in the
light most favorable to Edelman and to draw all reasonable inferences in her
favor. See Wolf, 295 F.3d at 308. There was not āsuch a complete absence of evidence supporting the verdict that the juryās ļ¬ndings could only have been the result of sheer surmise and conjecture.ā Connelly,61 F.4th at 325
(citation and quotation marks omitted). Rather, considering āthe evidence in a light most favorable to [Edelman] and grant[ing] [her] every reasonable inference that the jury might have drawn in [her] favor,ā Wolf,295 F.3d at 308
(citation omitted),
there was suļ¬cient evidence of each element of Edelmanās retaliation claims
against NYU and Antonik to support the juryās verdict in her favor.
The operative complaint brings claims for retaliation in violation of Title
VII, the NYSHRL, and the NYCHRL. The jury found that (1) NYU retaliated
against Edelman in violation of all three statutes, (2) Antonik aided and abetted
NYUās retaliation under the NYSHRL and the NYCHRL, and (3) Antonik
individually retaliated against Edelman in violation of the NYCHRL. The
District Court vacated the juryās verdict on these claims.
24
We review retaliation claims brought pursuant to Title VII, NYSHRL, and
NYCHRL under the familiar burden-shifting test established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973). Under this framework, a plaintiļ¬ carries the initial burden of making out a prima facie case of retaliation. See McDonnell Douglas,411 U.S. at 802
. In the Title VII context, this requires the plaintiļ¬ to establish four elements: (1) āan adverse employment actionā; (2) āparticipation in a protected activityā; (3) āthat the defendant knew of the protected activityā; and ā(4) a causal connection between the protected activity and the adverse employment action.ā Littlejohn v. City of N.Y.,795 F.3d 297, 316
(2d Cir. 2015) (citation and quotation marks omitted). The NYCHRL and NYSHRL employ a more liberal standard: ā[A] plaintiļ¬ claiming retaliation must demonstrate that she took an action opposing her employerās discrimination and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.ā Qorrolli v. Metro. Dental Assocs.,124 F.4th 115, 122
(2d Cir. 2024) (citation and quotation marks omitted). 9 9āThe NYSHRL historically utilized the same standard as Title VII, but it was amended in 2019 to align with the NYCHRLās more liberal pleading standard.ā Qorrolli v. Metro. Dental Assocs.,124 F.4th 115, 122-23
(2d Cir. 2024) (footnote omitted) (applying same standard for retaliation claims under the NYSHRL and NYCHRL on summary judgment); see also, e.g., Syeed v. Bloomberg L.P.,41 N.Y.3d 446
, 451 (2024) (construing NYSHRL and NYCHRL claims together).
25
If the plaintiļ¬ establishes a prima facie case of retaliation under any of
these statutes, āthe defendant then has the opportunity to oļ¬er legitimate
reasons for its actions.ā Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 75-76(2d Cir. 2015). If the defendant articulates a non-discriminatory basis for the adverse employment action, the burden shifts back to the plaintiļ¬ to show āeither that the defendantās reasons were pretextual, or that the defendantās stated reasons were not its sole basis for taking action, and that its conduct was based at least in part on discrimination.āId. at 76
(citations and quotation marks omitted). As set
forth below, we conclude that the jury could reasonably ļ¬nd that Edelman met
her initial burden of establishing a prima facie case, and that defendants failed to
articulate a legitimate, non-retaliatory basis for the termination of her contract.
1. Adverse Employment Action
There is no dispute that Edelman was subjected to an adverse employment
action when her employment was terminated by the failure to renew her
Speciļ¬cally, the amendment directs courts to construe the NYSHRL āliberally for
the accomplishment of the remedial purposes thereof, regardless of whether
federal civil rights laws, including those laws with provisions worded
comparably to the provisions of [the NYSHRL], have been so construed.ā N.Y.
Exec. Law Ā§300. The amendment took eļ¬ect on August 12, 2019, before Edelmanās claims arose. See2019 N.Y. Laws 6
(A. 8421); Golston-Green v. City of New York,123 N.Y.S.3d 24
, 35 n.1 (2d Depāt 2020) (noting that the āamendment
was made to be eļ¬ective August 12, 2019ā).
26
contract. ā[T]ermination constitutes an adverse employment actionā under Title
VII. Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 468(2d Cir. 2019). Termination also constitutes āconduct that was reasonably likely to deter a person from engaging inā protected activity, as required for retaliation claims under the NYSHRL and NYCHRL. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,715 F.3d 102, 112
(2d Cir. 2013).
2. Protected Activity
The evidence presented at trial was also more than adequate to establish
that Edelman engaged in protected activity. That evidence established that
Edelman made at least three complaints to human resources: the September 17,
2019, phone call to Pacina about Antonik; the September 25, 2019, email to Pacina
about Kaplan; and the November 1, 2019, email to Pacina about both men. āAn
employeeās complaint may qualify as protected activity, satisfying [this] element
of this test, so long as the employee has a good faith, reasonable belief that the
underlying challenged actions of the employer violated the law.ā Kelly v. Howard
I. Shapiro & Assocs. Consulting Engārs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per
curiam) (citation and quotation marks omitted). Edelman had a good-faith,
reasonable belief that the actions she challenged in each of her complaints
27
constituted unlawful gender discrimination in violation of Title VII, the
NYSHRL, and the NYCHRL.
Edelman testiļ¬ed that she expressed her belief, in each complaint, that the
conduct of Antonik and Kaplan was discriminatory, hostile, and sexist. Other
evidence at trial corroborated Edelmanās testimony. For instance, the September
25, 2019, email expressly states Edelmanās belief that she was ācontend[ing] with
male chauvinismā in the workplace and that she was ābeing discriminated
against to accommodate . . . a male physician.ā Appāx at 1219. Likewise, the
November 1, 2019, email explained that her complaints related to the ātreatment
of females within [the] workplace at NYU which is unacceptable.ā Supp. Appāx
at 283. Edelman therefore established at trial that she engaged in protected
activity.
3. Knowledge of Protected Activity
We turn next to the requirement that each ādefendant knew of the
protected activity.ā Littlejohn, 795 F.3d at 316 (citation and quotation marks
omitted). At least as to Edelmanās Title VII claim, āimplicit in the requirement
that the employer have been aware of the protected activity is the requirement
that it understood, or could reasonably have understood, that the plaintiļ¬'s
28
opposition was directed at conduct prohibited by [the statute].ā Qorrolli, 124
F.4th at 122. As to NYU, the District Court instructed the jury: āThereās no dispute that NYU knew of plaintiļ¬ās protected activity.ā Appāx at 2541. 10 Antonik, however, disputes that he knew that Edelmanās complaints concerned gender discrimination. Accordingly, he argues that he did not know Edelman engaged in protected activity. The District Court agreed, concluding that āthere is a complete absence of evidence supporting the proposition that Antonik was aware that Plaintiļ¬ās complaint concerned gender discrimination.ā Edelman v. NYU Langone Health Sys.,708 F. Supp. 3d 409
, 437 (S.D.N.Y. 2023) (emphasis
added). We disagree.
The evidence presented at trial was more than adequate to support the
juryās ļ¬nding that Antonik knew Edelmanās complaint involved claims of gender
discrimination. Edelman testiļ¬ed in detail about her encounter with Antonik on
10In any event, Edelman presented suļ¬cient evidence to establish this element.
āNothing more is necessary than general corporate knowledge that the plaintiļ¬
has engaged in a protected activity.ā Summa v. Hofstra Univ., 708 F.3d 115, 125-26(2d Cir. 2013) (citation and quotation marks omitted). Pacina, at the very least, was aware of Edelmanās protected activity; Edelman submitted her complaints directly to Pacina. Because Pacina, as a human resources manager, was an oļ¬cer of NYU, Pacinaās knowledge of Edelmanās protected activity may be imputed to NYU. See Zann Kwan v. Andalex Grp. LLC,737 F.3d 834, 844
(2d Cir. 2013).
29
September 16, 2019, including that āhe uttered, under his breath, bitch,ā and that
she āfelt that it was a sexist, discriminatory, chauvinistic attack.ā Appāx at 1206,
1210. Antonik participated in the incident, so he knew exactly what had
occurred. Edelman further testiļ¬ed that when she made her verbal complaint to
Pacina on September 17, 2019, she āwent through the events of what happenedā
in the confrontation with Antonik, informing Pacina of the events that she had
ājust described to the jury.ā Appāx at 1210-11. That testimony included
Antonikās use of the word ābitch.ā
Pacina took notes during the call. Pacinaās notes did not include Antonikās
use of the word ābitch,ā nor did they report that Edelman had asserted that she
felt the encounter was sexist and chauvinistic. But Edelman testiļ¬ed that the
notes did not reļ¬ect the entirety of her statements to Pacina. And Edelman cast
doubt on whether Pacinaās notes were created or ļ¬nalized contemporaneously
with their September 17, 2019, conversation or whether they had been
subsequently edited, because the notes were electronically marked as having
been altered on March 13, 2020, almost six months after the fact. The jury was
entitled to discredit Pacinaās notes and to believe Edelmanās testimony that she
told Pacina everything that happened, including that Antonik called her a
30
ābitch,ā and that she conveyed to Pacina that her complaint was at least in part
about the sexist nature of the encounter. Pacina therefore would have
understood that Edelmanās complaint involved gender discrimination. Pacina, in
turn, testiļ¬ed that she explained the nature of Edelmanās complaint to Antonik.
She also testiļ¬ed that her job duties required her to report any allegations of
discrimination, including by talking to the person who is the subject of the
complaint.
Indeed, Pacina contacted Antonik about the complaint the day after that
incident. Pacina also contacted Claudia Rose, a āHuman Resources Business
Partner,ā Appāx at 887, 11 to discuss Edelmanās complaint. Rose spoke to Antonik
directly about Edelmanās complaint and participated in Pacinaās discussion with
Antonik. Antonik testiļ¬ed that he understood the nature of the complaint, and,
in particular, that he knew it was not about oļ¬ce space, but āabout the way that
[he] spoke to her.ā Appāx at 1623. Antonik admitted that he was ābothered byā
the complaint. Id.
Pacina also testiļ¬ed that she called Kaplan after receiving Edelmanās initial
11Antonik testiļ¬ed that he spoke to Rose āevery now and thenā about āHR-
related issues.ā Appāx at 1619.
31
complaint about Antonik. Kaplan testiļ¬ed that after speaking with Pacina, his
understanding was that āEdelman ļ¬led a complaint against Joe Antonik for being
aggressive and retaliating for not allowing her to expand her hours.ā Appāx at 3229
(emphasis added). 12
Thus both Antonik and Kaplan understood ā based, apparently, on their
discussions with Pacina ā that Edelmanās complaints were not just about an oļ¬ce
space dispute, but about their treatment of Edelman. But Pacina insisted at trial
that she had no such understanding. Instead, Pacina testiļ¬ed that āEdelmanās
complaint [about Antonik] did not raise any concerns to [Pacina] about a hostile
work environment,ā and that it did not āoccur toā her that āEdelman was
complaining about gender or sex discriminationā when Edelman made that
complaint. Appāx at 2198.
Antonikās and Kaplanās understanding bolsters the inference that Pacina
did know that Edelmanās complaint was about more than just a dispute over
oļ¬ce space. This further supports our conclusion that the jury could reasonably
12At some point after this conversation, Kaplan also spoke to Antonik. And, as
described below, the other evidence adduced at trial established that Kaplan
knew that the complaint was about gender discrimination. The jury could
reasonably infer that Kaplan conveyed his understanding of that fact to Antonik.
32
have found that Pacinaās testimony about Edelmanās complaints was not credible
and discredited that testimony ā including Pacinaās testimony about what Pacina
reported to Antonik and Kaplan about the complaints.
Furthermore, on September 25, 2019, Edelman sent Pacina an email
regarding her complaints, expressly stating her frustration that, ā[a]s a female
physician,ā she was dealing āwith male chauvinism.ā Appāx at 1219. At trial,
Pacina denied any recollection of that email. See Appāx at 2214. After reviewing
the email with Pacina, Edelmanās counsel asked Pacina: āBut you still deny Dr.
Edelman raised any complaint about gender discrimination; correct?ā Pacina
responded: āYes.ā Appāx at 2200. Again, the jury could reasonably have
questioned Pacinaās credibility in light of that testimony and the email.
Finally, in her November 1, 2019, email, Edelman clearly advised Pacina
that her complaints related to the ātreatment of females within [the] workplace at
NYUā and that she felt the behavior of both Antonik and Kaplan ā both of whom
she named speciļ¬cally in the email ā had been ānot appropriateā and amounted
to āabusive and bullying behavior.ā Supp. Appāx at 280. Pacina responded to
that email by indicating that she would share the complaint with the appropriate
labor relations manager and get back to her āregarding next steps.ā Id. On
33
November 12, 2019, Edelman again contacted Pacina, complaining speciļ¬cally of
retaliation related to an oļ¬ce move. See Supp. Appāx at 283. Antonik testiļ¬ed
that in his role as site manager, his duties included āmanaging doctorsā oļ¬ce
space and moving them sometimes.ā Appāx at 1586. The jury could thus
reasonably infer that Pacina informed both Antonik and Kaplan of the November
2019 emails.
Considering āthe evidence in a light most favorable toā Edelman, and
drawing āevery reasonable inference that the jury might have drawn inā her
favor, Wolf, 295 F.3d at 308, we conclude that the jury could reasonably have
found that Antonik was aware that Edelman engaged in protected activity as
soon as the day after her ļ¬rst complaint, and at least through November 12, 2019.
4. Causation and Intent
That brings us to the ļ¬nal requirement: āa causal connection between the
protected activity and the adverse employment action.ā Littlejohn, 795 F.3d at 316
(citation and quotation marks omitted). We have recently reaļ¬rmed that āproof
of a causal relationship between the protected activity and the adverse action[]
can be established either (1) directly, through evidence of retaliatory animus
toward the plaintiļ¬, or (2) indirectly, through circumstantial evidence.ā Moll v.
34
Telesector Res. Grp., Inc., 94 F.4th 218, 239(2d Cir. 2024) (citation and quotation marks omitted). Thus, a jury ācan ļ¬nd retaliation even if the agent [who causes the adverse employment action] denies direct knowledge of a plaintiļ¬ās protected activities, for example, so long as the jury ļ¬nds that the circumstances evidence knowledge of the protected activities.ā Gordon v. N.Y.C. Bd. of Educ.,232 F.3d 111, 117
(2d Cir. 2000); see also Zann Kwan,737 F.3d at 845
.
Before evaluating the evidence of causation, we note that we have long
cautioned against granting judgment as a matter of law where intent is at issue.
We have emphasized that summary judgment in favor of an employer on this
prong should be granted only sparingly ābecause careful scrutiny of the factual
allegations may reveal circumstantial evidence to support the required inference
of discrimination [or retaliation].ā Konits v. Valley Stream Cent. High Sch. Dist., 394
F.3d 121, 124 (2d Cir. 2005) (citation and quotation marks omitted); see also, e.g., Feingold v. New York,366 F.3d 138, 149
(2d Cir. 2004); Gallo v. Prudential Residential Servs., Ltd. Pāship,22 F.3d 1219, 1224
(2d Cir. 1994). This need for
caution is heightened in the context of a JMOL, which takes the question out of
the juryās hands, and even more so when considering a request to set aside a
juryās considered verdict on a motion for JNOV. And circumstantial evidence is
35
often necessary in these contexts because āwhere an employer has acted with
discriminatory [or retaliatory] intent, direct evidence of that intent will only
rarely be available.ā Bart v. Golub Corp., 96 F.4th 566, 569(2d Cir. 2024) (citation and quotation marks omitted). āInstead, plaintiļ¬s usually must rely on bits and pieces of information to support an inference of discrimination [or retaliation].ā Vega v. Hempstead Union Free Sch. Dist.,801 F.3d 72, 86
(2d Cir. 2015) (citation and quotation marks omitted). Indeed, because ādirect evidence of retaliatory intent is rarely available . . . , courts have long since held it proper for a jury to base its verdict wholly on reliable inferences deduced from circumstantial evidence.ā United States v. Brown,937 F.2d 32, 36
(2d Cir. 1991) (citations omitted).
Upon careful review of the record, we conclude that ample circumstantial
evidence supports the juryās verdict. The evidence at trial supported an
inference that Antonik harbored retaliatory intent, and his intent may be
imputed to NYU under the ācatās pawā theory. We begin with Antonik.
a. Antonikās Liability under NYSHRL and NYCHRL
The jury found Antonik liable as an aider-or-abettor under the NYSHRL,
and both directly and as an aider-or-abettor under the NYCHRL. These ļ¬ndings
were adequately supported by the evidence presented at trial.
36
āEmployees may be held personally liable under the NYSHRLā and
NYCHRL for aiding and abetting an employerās retaliatory act āif they
participate in the conduct giving rise to a [retaliation] claim.ā Feingold, 366 F.3d
at 158-59 (citation and quotation marks omitted).
To show causation under the NYSHRL and NYCHRL, a plaintiļ¬ need only
show that retaliatory animus āwas a motivating factor,ā that is, that it played any
role at all in the challenged conduct. Bennett v. Health Mgmt. Sys., 936 N.Y.S.2d
112, 120 (1st Depāt 2011) (citation and quotation marks omitted) (stating standard for NYCHRL retaliation claims); see Qorrolli,124 F.4th at 122
(explaining that the
NYSHRL now mirrors the standards applicable to the NYCHRL).
The evidence presented at trial was suļ¬cient to support the juryās verdict
against Antonik. In particular, the jury was entitled to place weight on the
temporal proximity between Edelmanās complaints and Antonikās actions against
her. Even under Title VIIās more demanding standard, ā[a] plaintiļ¬ can
indirectly establish a causal connection to support a discrimination or retaliation
claim by showing that the protected activity was closely followed in time by the
adverse employment action.ā Banks v. Gen. Motors, LLC, 81 F.4th 242, 277 (2d Cir.
2023) (citation and quotation marks omitted).
37
Antonik directed Ruiz, the oļ¬ce manager who reported directly to him, to
prepare a āspreadsheetā and ādocumentationā regarding purported āissuesā
with Edelman. Appāx at 1928. Ruiz titled this log āDr. Sari Edelman Issues,ā and
the ļ¬rst dated entry in it was made on November 13, 2019 ā only one day after
Edelman followed up yet again with Pacina about her complaints against
Antonik and Kaplan, indicating to Pacina that Edelman was still pursuing the
issue. Appāx at 3294. 13 Signiļ¬cantly, Edelman had worked at NYU for over ļ¬ve
years at that point, and there is no evidence that such a log had ever been
prepared before, or indeed that there had previously been any complaints
against Edelman to log. Although Ruiz testiļ¬ed that she kept ālogs in the same
format for other doctors,ā Appāx at 1946, no such logs were introduced in
evidence, no other witness testiļ¬ed to ever having seen such a log for any other
doctor, and Ruiz did not identify any other speciļ¬c doctors about whom she
maintained such a log, or when she ļ¬rst created any such logs. Likewise, Kaplan
testiļ¬ed that he had never received an email ā[a]bout [a] physicianās
13Kaplan conļ¬rmed that Antonikās actions against Edelman began only when
she made her initial complaint, testifying that September 17, 2019, was āthe ļ¬rst
time that Mr. Antonik ever sent [him] any email about Dr. Edelman.ā Appāx at
1703.
38
performanceā like the one he was sent, based on the Ruiz/Antonik Log, about
Edelman. Appāx at 1699.
When Edelman made her complaints and the āissuesā log was created,
Edelmanās contract was not set to expire for another year, in November 2020.
Edelmanās contract provided that she could only be terminated āfor cause.ā
Appāx at 2669. Her contract therefore could not be easily terminated ā but it did
not have to be renewed once it expired in 2020. The āissuesā log documented
several complaints relating to Edelmanās treatment of patients and staļ¬,
including her āunprofessionalā conduct and failure to keep appointments with
patients, rude behavior toward staļ¬, and failure to properly keep medical
records. However, Rubin testiļ¬ed that Edelman ādid not ļ¬t any of the for-cause
deļ¬nitions laid out in her contract.ā Appāx at 1994.
This circumstantial evidence supports an inference that Kaplan and
Antonik began collecting information with an eye toward ensuring that
Edelmanās contract would not be renewed. See Appāx at 2879 (email from
Antonik indicating that he and Kaplan āneed a clear, convincing summary with
examplesā about Edelman). Indeed, based on the evidence presented at trial, it is
diļ¬cult to discern any reason for the creation of the log and the gathering of
39
information about Edelman other than the desire to ensure that her contract not
be renewed. Although Antonik testiļ¬ed that some of the issues described in the
log related to āpatient care,ā and that NYU had a special employee hotline for
reporting patient care issues, he took no steps to report those issues until
Edelmanās contract was up for renewal. Appāx at 1598-99. He never spoke to
Edelman about any of the issues. See Appāx at 1600. He did not claim to have
contacted Rubin about Edelmanās performance because of any purported
concerns about patient welfare or satisfaction until almost a year after the log
was created. Instead, the information was delivered to Rubin for the ļ¬rst time on
November 6, 2020, and it formed the sole basis for Rubinās decision not to renew
Edelmanās contract. Antonikās suspicious silence about purported patient care
issues that one would expect to require prompt attention strongly suggests that
his order to track such issues was motivated by retaliatory animus.
A reasonable jury, having observed the testimony of Antonik, Kaplan,
Edelman, Ruiz, and others, could conclude ā as this jury did ā that but for
Antonikās collection of the information in the list, Rubin would not have
terminated Edelmanās employment. Based on the temporal proximity between
Edelmanās complaints and Antonikās eļ¬orts to compile issues with Edelman,
40
such a jury could also conclude that Antonikās decision to provide this
information to Rubin was rooted, at least in part, in retaliatory animus. And
despite the year-long delay between Edelmanās protected activity and her non-
renewal, we may infer causation from the fact that Edelman suļ¬ered adverse
consequences āat the ļ¬rst actual opportunity to retaliate.ā Summa, 708 F.3d at
128 (inferring causation where plaintiļ¬ was terminated at āthe ļ¬rst moment in
time when the football coaching staļ¬ could have retaliated against [her]ā).
Antonik therefore āparticipatedā in the conduct underlying Edelmanās
retaliation claim and can be held liable as an aider-or-abettor under both the
NYSHRL and the NYCHRL. See Feingold, 366 F.3d at 158-59. Further, a reasonable jury could conclude that Antonikās collection of this information was āconduct that was,ā when made known, āreasonably likely to deter a person from engaging in [protected] action,ā Mihalik,715 F.3d at 112
, and could infer
that retaliatory animus was at least a motivating factor underlying this conduct,
see Bennett, 936 N.Y.S.2d at 120. Thus, the juryās verdict as to Antonikās direct
liability under the NYCHRL is also supported. The District Court therefore erred
in granting the motion for JNOV in Antonikās favor.
41
b. NYUās āCatās Pawā Liability Under Title VII
To establish causation under Title VII, a plaintiļ¬ must show that retaliation
was the ābut-forā reason for the adverse employment action. Tafolla v. Heilig, 80
F.4th 111, 125(2d Cir. 2023). As the District Court explained, Edelmanās theory of causation at trial as to NYUās liability ārelied on the catās paw doctrine: She argued that Antonik, acting out of retaliatory animus, had manipulated Rubin to ensure her contract was not renewed.ā Edelman v. NYU Langone Health Sys.,708 F. Supp. 3d 409
, 442 (S.D.N.Y. 2023). The ācatās pawā theory of liability under
Title VII
refers to a situation in which an employee is ļ¬red or subjected to some
other adverse employment action by a supervisor who himself has no
discriminatory motive, but who has been manipulated by a
subordinate who does have such a motive and intended to bring
about the adverse employment action. Because the supervisor, acting
as agent of the employer, has permitted himself to be used as the
conduit of the subordinateās prejudice, that prejudice may then be
imputed to the employer and used to hold the employer liable for
employment discrimination.
Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272 (2d Cir. 2016) (citations
and quotation marks omitted). The āsubordinateā ā Antonik ā who manipulates
the employer ā Rubin and NYU ā must āintend[], for discriminatory [or
retaliatory] reasons, that the adverse [employment] action occur.ā Staub v.
42
Proctor Hosp., 562 U.S. 411, 419 (2011).
As discussed above, the jury reasonably found that Antonik intended, for
retaliatory reasons, to prevent Edelmanās contract from being renewed. Antonik
did not have ultimate decision-making authority over Edelmanās contract. But
under the catās paw theory, an employer may be found āliable under Title VII
when, through its own negligence, the employer gives eļ¬ect to the retaliatory
intent of one of its ā even low-level ā employees.ā Vasquez, 835 F.3d at 273-74. Antonik initiated the compilation of a log of āissuesā with Edelman, which was ultimately transmitted to Rubin. This list was the sole basis for Rubinās decision not to renew Edelmanās contract. Viewing the evidence in the light most favorable to Edelman, as we are required to do in light of the juryās verdict, the information compiled by Ruiz at Antonikās request ābecame the entire case against [Edelman] when [NYU] negligently chose to creditā only this information in deciding to terminate the contract.Id. at 275
.
Defendants argue that there was no evidence at trial that Rubin acted
negligently in relying on the information gathered by Antonik (and others). But
Rubin testiļ¬ed that in response to the email of āissuesā with Edelman, he
conducted only a very limited inquiry. He did not express any surprise at the
43
sudden onset of āissuesā with Edelman in late 2019, after ļ¬ve years of
employment without complaints. While he had conversations with two doctors
ā Porges and Dr. Avram Goldberg, see Appāx at 2029 ā he did not interview
Edelman, Antonik, Kaplan, or any of the staļ¬ members or patients identiļ¬ed as
having made complaints about Edelman. See Appāx at 2032. He did not inquire
about any human resources investigations involving Edelman and was therefore
apparently unaware of the 2019 complaints. See Appāx at 2030. The jury could
reasonably have concluded that this was not an adequate inquiry into the
charges against Edelman, and that Rubin ā acting on behalf of NYU ā was
negligent in accepting the reports and terminating Edelmanās contract as a result.
This was suļ¬cient to allow a reasonable jury to ļ¬nd NYU liable for retaliation
under a catās paw theory.
Considering āthe evidence in a light most favorable toā Edelman, and
drawing āevery reasonable inference that the jury might have drawn inā her
favor, Wolf, 295 F.3d at 308, we conclude that the jury could reasonably have
found a causal connection between Edelmanās complaints and the termination of
her contract.
44
5. Legitimate, Non-Retaliatory Reasons for Non-Renewal
In response to Edelmanās establishment of a prima facie case of retaliation
against Antonik and NYU, defendants failed to oļ¬er any evidence, apart from
the list of issues compiled by Ruiz, that they had legitimate, non-retaliatory
reasons for the non-renewal of Edelmanās contract and resultant termination of
her association with NYU. As noted, defendants admitted that the information
that was delivered to Rubin on November 6, 2020 ā that is, the information
gathered by Antonik and Kaplan in retaliation for Edelmanās complaints against
them ā formed the sole basis for Rubinās decision not to renew Edelmanās
contract. In other words, there is no dispute that the only basis for NYUās
termination of Edelman was the material that we have concluded is itself infected
by the retaliatory motives of Antonik and Kaplan. As such, we need not proceed
to the third step of the McDonnell Douglas framework. See Ya-Chen Chen, 805 F.3d
at 75-76.
6. Defendantsā Motions for JNOV Should Have Been Denied
The jurors watched each of the relevant parties testify. They heard their
statements and observed their demeanors. They alone were entitled to make
credibility determinations. They were entitled to believe Edelman, and to
45
discredit the testimony of Pacina and Antonik. The jury was entitled to consider
all of the information before it ā all of the direct and circumstantial evidence, and
the credibility of each witness ā in reaching its verdict. Viewing that evidence in
the light most favorable to Edelman and drawing all reasonable inferences in her
favor, the evidence was suļ¬cient to support a verdict for Edelman. In sum, the
juryās verdicts against Antonik and NYU were not āthe result of sheer surmise
and conjecture,ā and should not have been set aside by the District Court.
Connelly, 61 F.4th at 325 (citation and quotation marks omitted).
We therefore vacate the District Courtās judgment as to Edelmanās
retaliation claims against NYU and Antonik and direct the District Court to
reinstate the juryās verdict on these claims.
C. Retaliation Claims Against Kaplan
Edelman also argues that the District Court improperly granted the
defendantsā motion for judgment as a matter of law as to Kaplan on Edelmanās
retaliation claims. Again, we agree.
As noted above, we review this issue de novo. See id. Claims under the
NYSHRL and NYCHRL are reviewed under the McDonnell Douglas burden-
shifting framework. To establish a prima facie case of retaliation under the
46
NYSHRL or the NYCHRL, a plaintiļ¬ must show:
(1) he or she engaged in a protected activity as that term is deļ¬ned
under the NYCHRL, (2) his or her employer was aware that he or she
participated in such activity, (3) his or her employer engaged in
conduct which was reasonably likely to deter a person from engaging
in that protected activity, and (4) there is a causal connection between
the protected activity and the alleged retaliatory conduct.
Bilitch v. N.Y.C. Health & Hosps. Corp., 148 N.Y.S.3d 238, 246 (2d Depāt 2021)
(citations and quotation marks omitted).
At the close of Edelmanās case-in-chief, Kaplan moved for entry of JMOL,
and the District Court heard argument on the motion. The District Courtās ruling
in Kaplanās favor was oral, and brief: āThe Court grants judgment as a matter of
law for Kaplan on all claims of retaliation. There is insuļ¬cient evidence in the
record for a reasonable jury to conclude that Kaplan had any retaliatory intent or
that he had any involvement in any adverse action.ā Appāx at 2431.
We conclude that there was suļ¬cient evidence in the record for a
reasonable jury to conclude that Kaplan had retaliatory intent and that he
participated in the nonrenewal of Edelmanās contract. As described above,
Edelman established that she engaged in protected activity and that she suļ¬ered
an adverse employment action. We conclude that she also proļ¬ered suļ¬cient
evidence from which a reasonable jury could conclude that Kaplan knew of the
47
protected activity, and that the adverse employment action was causally
connected to her protected activity.
There is ample evidence in the record to support a ļ¬nding that Kaplan
knew Edelmanās complaint was based on gender. After Edelmanās ļ¬rst verbal
complaint, Pacina called Kaplan. After speaking with Pacina, Kaplanās
understanding was that āDr. Edelman ļ¬led a complaint against Joe Antonik for
being aggressive and retaliating for not allowing her to expand her hours.ā
Appāx at 3229. When Kaplan met with Edelman following her initial complaint,
he told her to ācalm down,ā to which Edelman responded: ā[I]t is sexist to say to
a woman calm down.ā Appāx at 1215. Edelman then sent an email to Pacina
describing the incident with Kaplan. The email stated, in relevant part, that
Kaplan ātook on similar mannerisms [to Antonik] of condescending tone, raising
his voice to child-like manner to placate my disagreement.ā Appāx at 1218. The
email also stated:
As a female physician in the organization, I am disappointed that it is
2019, approaching 2020, in a major hospital organization in New York,
and I still have to contend with male chauvinism. . . . It remains
unclear to me why I am being discriminated against to accommodate
another physician, particularly a male physician, who will be joining
the practice, which is the stated reason I will be pushed out to another
space. . . . This is the ļ¬rst time in all these years where I feel my
growth as a physician is being deliberately infringed on by senior
48
male managers.
Appāx at 1219. Kaplan admitted that Pacina spoke to him about this complaint,
too. Under any reasonable reading, Edelmanās written complaint clearly related,
at least in part, to gender discrimination. And the record reļ¬ects that Kaplan and
Antonik were both directly involved in the eļ¬ort to gather the information about
Edelman that was ultimately the basis for her non-renewal. See Appāx at 2879
(email from Antonik indicating that Kaplan ārequested all information on
Edleman [sic] to be sent to him today,ā November 6, 2020).
ā[T]he evidence at trial did not preclude a ļ¬nding thatā Kaplan retaliated
against Edelman based on her complaints. Leopold v. Baccarat, Inc., 174 F.3d 261,
269(2d Cir. 1999). To the contrary, there was suļ¬cient evidence to show Kaplanās involvement in the eļ¬ort to prevent Edelmanās contract from being renewed, and there was suļ¬cient evidence to support a ļ¬nding that he was motivated by retaliatory animus. We therefore conclude āthat the district court erred by taking the [retaliation claim against Kaplan] from the jury, we vacate the district courtās entry of judgment as a matter of law, and we remand for a new trial on that claim.āId.
49
V. CONCLUSION
For the foregoing reasons we:
ā¢ AFFIRM the District Courtās denial of Edelmanās motion for judgment
as a matter of law on her state and federal EPA claims;
ā¢ AFFIRM the District Courtās grant of judgment as a matter of law to all
defendants as to Edelmanās claims for punitive damages;
ā¢ VACATE the District Courtās decision granting judgment
notwithstanding the verdict as to Edelmanās retaliation claims against
Antonik under the NYSHRL and the NYCHRL, and against NYU under
Title VII, the NYSHRL, and the NYCHRL, and REMAND with
instructions to reinstate the juryās verdict on those claims; and
ā¢ VACATE the District Courtās decision granting judgment as a matter of
law to Kaplan on Edelmanās retaliation claims under the NYSHRL and
the NYCHRL, and REMAND for a new trial on those claims.
50