In Edelman v. NYU Langone Health System et al, 2023 WL 8892482 (S.D.N.Y. Dec. 26, 2023), the court, inter alia, granted defendant’s motion for judgment notwithstanding the verdict on plaintiff’s retaliation claim.
Among other points discussed in this comprehensive decision is a key point in retaliation cases. From the decision:
The complete absence of evidence that Antonik was aware that Plaintiff had complained about gender discrimination is fatal to her retaliation claims against NYU. Plaintiff’s theory at trial relied on the cat’s paw doctrine: She argued that Antonik, acting out of retaliatory animus, had manipulated Rubin to ensure her contract was not renewed. Trial Tr. 1402:20–25 (“Kaplan forwards the email to Swirnow, who passes the information on to Rubin, who ultimately makes the decision, based on all of this information. If a factor—if a factor—1 percent, again, was motivated by Joe Antonik in this, that’s sufficient under the law for a retaliation claim.”); see also id. at 29:3–25, 1401:18–24. As a result, the Court instructed the Jury on the cat’s paw doctrine for each of Plaintiff’s retaliation claims against NYU. Id. at 1453:17–1454:8, 1459:8–24, 1466:14–18. And Plaintiff maintains that cat’s paw theory in her post-trial briefing, contending that “Antonik was the catalyst and primary actor behind Dr. Edelman’s termination, and admitted that he was the first to complain about her.” Dkt. No. 278 at 16. She reiterated that theory at oral argument.13 But the cat’s paw theory permits an “employee’s motivation [to] be imputed to the employer and used to support a claim” of retaliation. Vasquez, 835 F.3d at 275; see Menaker, 935 F.3d at 37–38. As a result, a plaintiff cannot prevail on a cat’s paw theory if the manipulating employee lacks a retaliatory intent. See Campbell v. Nat’l Fuel Gas Distribution Corp., 252 F. Supp. 3d 205, 214 (W.D.N.Y. 2017), aff’d, 723 F. App’x 74 (2d Cir. 2018) (summary order); Vaughn v. Empire City Casino at Yonkers Raceway, 2017 WL 3017503, at *22 (S.D.N.Y. July 14, 2017). Here, there is no evidence that Antonik knew Plaintiff’s complaint alleged gender discrimination. Without that knowledge, Antonik could not have intended to retaliate against Plaintiff for reporting gender discrimination.14 See Olaechea, 2022 WL 3211424, at *5 (explaining retaliatory intent “necessarily requires … knowledge of the protected activity”); see also EEOC, Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016) (“Absent knowledge, there can be no retaliatory intent.”); accord Romero v. Allstate Ins. Co., 3 F. Supp. 3d 313, 328 (E.D. Pa. 2014), aff’d sub nom. EEOC v. Allstate Ins. Co., 778 F.3d 444 (3d Cir. 2015); Lewis v. Zilog, Inc., 908 F. Supp. 931, 957–58 (N.D. Ga. 1995); Downey v. Isaac, 622 F. Supp. 1125, 1132 (D.D.C. 1985), aff’d, 794 F.2d 753 (D.C. Cir. 1986). Thus, given the complete absence of evidence that Antonik knew Plaintiff complained about gender discrimination, no reasonable jury could find that Antonik formed a retaliatory intent that NYU adopted when it decided not to renew Plaintiff’s contract.
The court further rejected plaintiff’s argument that “general corporate knowledge” would suffice for this purpose, holding that “[w]hile general corporate knowledge can satisfy the knowledge requirement in a plaintiff’s prima facie case of retaliation … a plaintiff pursuing cat’s paw liability must also show that the manipulating employee knew that the plaintiff engaged in protected activity in order to form a ‘retaliatory intent[.]'”