Forte v. Liquidnet Holdings, Inc.
675 F. App'x 21
2d Cir.2017Background
- Forte, hired Dec 2011, worked at Liquidnet as Head of U.S. Sales and later Head of Global Performance Team; discharged Nov 2013.
- Forte sued for gender discrimination under Title VII, NYSHRL, and NYCHRL.
- District court excluded plaintiff’s expert report (Dr. Christopher Erath) under Fed. R. Evid. 702 and granted summary judgment for Liquidnet and CEO Merrin.
- Erath’s report used employer-provided pay data without independent verification and did not control for non-gender variables (e.g., tenure, performance).
- Defendants produced contemporaneous documentation and testimony attributing Forte’s termination to performance problems.
- Plaintiff’s comparators and evidence of pretext were deemed insufficient; NYCHRL claims were found waived for cursory treatment below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert statistical report under Rule 702 | Erath’s report shows pay disparity supporting discrimination | Report unreliable: unverified data and no controls for non-discriminatory factors | Exclusion affirmed — report unreliable and of limited relevance |
| Sufficiency of evidence to survive summary judgment on discriminatory discharge | Forte was fired because of gender; performance reasons are pretextual | Termination was for documented performance failures | Summary judgment affirmed for defendants — no admissible evidence of pretext |
| Appropriateness of pay-comparators | Proposed male comparators earned more; disparity supports claim | Comparators were not similarly situated (e.g., longer tenure, different roles) | Forte failed to establish appropriate comparators; claim fails |
| NYCHRL claim treatment on appeal | At minimum, remand for separate NYCHRL analysis | Forte waived NYCHRL by cursory below; no developed argument | Waiver affirmed — no remand; plaintiff failed to brief NYCHRL properly |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial judge as gatekeeper for expert evidence)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (expert testimony must employ same intellectual rigor as the field)
- Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256 (2d Cir. 2002) (abuse-of-discretion standard for excluding experts)
- Munoz v. Orr, 200 F.3d 291 (5th Cir. 2000) (expert reliance on unverified plaintiff data warrants skepticism)
- Ste. Marie v. E.R. Ass’n, 650 F.2d 395 (2d Cir. 1981) (statistical correlation insufficient without controlling for other variables)
- Bickerstaff v. Vassar Coll., 196 F.3d 435 (2d Cir. 1999) (statistical analyses that ignore non-discriminatory causes generally inadmissible)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for discrimination claims)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (standard for granting summary judgment)
- Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102 (2d Cir. 2013) (NYCHRL requires separate, broader analysis)
- Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir. 2000) (plaintiff must show proffered reasons are false and discrimination more likely than not)