Edelman v. NYU Langone Health SystemEdelman v. NYU Langone Health System
Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X 12/26/2023
:
DR. SARI EDELMAN, :
:
Plaintiff, :
: 21-cv-502 (LJL) -v- : : OPINION AND ORDER
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, and JOSHUA :
SWIRNOW, :
:
Defendants. :
:
---------------------------------------------------------------------- X
LEWIS J. LIMAN, United States District Judge:
Plaintiff Sari Edelman (“Plaintiff”) and defendants 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, “NYU”), and Andrew T. Rubin, David Kaplan, Joseph Antonik, and Joshua
Swirnow (together with NYU, “Defendants”) cross-move for judgment as a matter of law,
pursuant to
For the following reasons, Plaintiff’s motion is denied and Defendants’ motion for judgment as a matter of law is granted.
BACKGROUND
The Court discusses only the evidence adduced at trial that is relevant to the instant motions and, in each instance, in the light most favorable to the non-moving party.
Plaintiff is a rheumatologist. Trial Tr. 49:25. She graduated from the New York College of Osteopathic Medicine in 2003. Id. at 50:3–9. She subsequently performed her residency and a fellowship at Winthrop University Hospital. Id. at 52:12–15. Upon completing her fellowship in 2008, Plaintiff and a colleague from Winthrop, Dr. Kavini Mehta, went into private practice together, opening their own rheumatology office in Lake Success, New York, on Long Island. Id. at 54:10–19, 57:5–21.
In 2014, NYU sought to expand its rheumatology network to Long Island. The first rheumatologist NYU hired on Long Island was Dr. Avram Goldberg, who worked next door to Plaintiff and Dr. Mehta. Id. at 68:17–25. Dr. Goldberg approached Plaintiff and Dr. Mehta about joining NYU. Id. at 68:14. Excited by the opportunity, Plaintiff and Dr. Mehta interviewed with Rubin and Swirnow, who were senior administrators at NYU in Manhattan. Id. at 70:25–71:3. Rubin was Vice President of Clinical Affairs and Ambulatory Care, id. at 867:15–17, and Swirnow was Assistant Vice President for Clinical Affairs and Business Development, id. at 644:12–18. NYU hired Plaintiff and Dr. Mehta and took over their Lake Success office. Id. at 73:25–74:2, 77:20.
Plaintiff entered into a three-year contract with NYU to serve as an assistant professor of medicine and staff physician. Id. at 80:23–81:1, 82:11–12. During the term of her contract, NYU could only terminate Plaintiff for cause. Id. at 83:13–15. The contract also contained a target relative value unit (“RVU”) for Plaintiff. Id. at 87:25, 88:7–10. RVUs are government- created metrics that reflect the relative time and difficulty of medical procedures for purposes of Medicare billing. at 84:24–85:14. NYU tracked its physicians’ RVU outputs to measure their productivity and performance. Id. at 85:18–24. Plaintiff’s target RVU was 4,996. Id. at 87:25, 88:7–10.
Initially, NYU’s acquisition of Plaintiff’s private practice was seamless, at least from an administrative perspective. While the sign on the door changed, Plaintiff continued to work out of the same office with Dr. Mehta and their existing staff. Id. at 79:5–19. However, new NYU personnel soon joined the Lake Success location. First, Dr. Goldberg began to practice alongside Plaintiff and Dr. Mehta there. Id. at 93:21–23. NYU also installed Dr. Andrew Porges at the Lake Success site as its medical director. Id. at 93:24–25, 762:10–12. And administrative staff arrived to help manage the office—including Kaplan, the senior site director, and Antonik, an office manager who reported to Kaplan. Id. at 110:2–17.
NYU’s expansion of its rheumatology network on Long Island was not limited to Lake Success. While NYU’s medical facility in Huntington, New York, had a large patient population, the facility did not offer rheumatological care. Id. at 937:25–938:2. Rubin, Swirnow, and other senior administrators were eager to recruit a rheumatologist to establish a practice in Huntington and fill that gap. Id. at 737:20–25, 938:1–7. NYU did so in February of 2017, when it hired Dr. Anang Modi. Id. at 199:13–19. Like Plaintiff, Dr. Modi attended the New York College of Osteopathic Medicine and then completed his residency and a rheumatology fellowship at Winthrop University. Id. at 1009:8–18, 1256:19–17. But Dr. Modi earned his degree two years ahead of Plaintiff. Id. at 1257:20–21. And, following his fellowship, he joined the Queens Long Island Medical Group, a healthcare provider with over 500 physicians that was subsequently acquired by Advantage Care Physicians. Id. at 1257:3–17, 1273:4–9. Dr. Modi was the medical director of its Hempstead office, where he practiced rheumatology and supervised a team of fifteen physicians. at 1273:9–14. Based on his experience and strong reputation, Rubin and Swirnow believed Dr. Modi was an ideal candidate to join NYU’s Huntington facility. Id. at 737:17–25; 937:20–938:4. Dr. Modi’s contract with NYU set his salary at $360,000 and his target RVU at 6,108. Id. at 738:10–21.
In 2017, prior to the expiration of her initial contract, Plaintiff and NYU agreed to renew her contract for another three-year term, beginning January 1, 2018. Id. at 107:14–21. Plaintiff’s renewed contract increased her salary to $278,000 and RVU target to 5,200. Id. at 107:22– 108:4. Shortly after her renewed contract went into effect, Plaintiff began to spend one day per week seeing patients at NYU’s Huntington facility and the remainder of her time at the Lake Success site. Id. at 108:12–18, 112:15.
In the late afternoon of September 16, 2019, Antonik approached Plaintiff in her Lake Success office. Id. at 110:21–111:1. With the door closed, he informed her that because NYU had hired a new rheumatologist, another physician would need to use Plaintiff’s office two days per week. Id. at 111:9–17, 114:25. Plaintiff replied that she believed her contract entitled her to full-time use of an office and that she would need to review the contract with her attorneys. Id. at 112:7–15. Antonik grew animated at Plaintiff’s response. Id. at 112:18. According to Plaintiff, although both Antonik and Plaintiff were seated, Antonik moved his chair closer to Plaintiff. Id. at 112:20–3. He then raised his arms and pointed at pictures and other personal belongings on Plaintiff’s desk, stating that Plaintiff did not own the office just because she put her stuff there. Id. at 113:6–12. It all belongs to NYU, he said, this whole office and we own you. Id. at 113:12–14. Plaintiff later testified at trial that Antonik uttered the word “bitch” under his breath during this conversation. Id. at 113:16. In his testimony, Antonik denied using that word. Id. at 530:18. Plaintiff backed up and told Antonik he needed to leave. at 113:15–19. He did. Id. at 113:20. Plaintiff, who is smaller than Antonik, felt upset and intimated by the confrontation. Id. at 113:22–114:2, 115:18–21.
The following day, Plaintiff called Kathleen Pacina—a Human Resources (“HR”) manager responsible for handling performance problems, employee disputes, and other issues, id. at 1087:2–15—to complain about the incident, id. at 116:18–24. Plaintiff described what had transpired. Id. at 117:6–7. As she was senior to Antonik and had been at the Lake Success location longer than he had, she stated that she found his conduct and demeanor profoundly disrespectful. Id. at 117:15–22. Plaintiff also characterized Antonik’s behavior as sexist, discriminatory, and chauvinistic. Id. at 117:4–5. Pacina took notes during their conversation, assigned the complaint a case number, and said she would get back to Plaintiff. Id. at 117:8–10.
Pacina’s notes indicate that Plaintiff described how Antonik “thr[ew] his arms and point[ed] at things” and stated he would “bring this up to the powers that be.” Plaintiff’s Ex. 21. The notes also reflect that Plaintiff said she found Antonik’s conduct “intimidating” and that their encounter made Plaintiff “very uncomfortable.” Id. But Pacina’s notes did not mention sexism, discrimination, or chauvinism. See id. And Pacina later testified at trial that she did not understand Plaintiff’s complaint to concern the way she was treated vis-à-vis her gender. Trial Tr. 1100:23–25.
Pacina followed up on Plaintiff’s complaint by speaking to Antonik about the incident. Id. at 523:11–15. That conversation was when Antonik first learned about Plaintiff’s complaint. Id. at 523:16–18. Antonik explained his perspective on what had occurred to Pacina. Id. at 523:23–524:1. Pacina again took notes. at 1107:23–1108:2. Those notes state that Antonik denied raising his arms, but acknowledged that he said he would take the issue up with the “powers that . . . be” after Plaintiff said to contact her lawyers regarding her entitlement to an office. Plaintiff’s Ex. 21. Antonik told Pacina the office request was not personal to Plaintiff, as many doctors at NYU had to share their space. Id.
Kaplan reached out to Plaintiff on September 25, 2019. Trial Tr. 118:14–19. He apologized for what had happened with Antonik but explained that NYU had reviewed her contract and confirmed that she was not entitled to an office five days a week, so she would need to share her space on Thursdays and Fridays. Id. at 120:15–21. Plaintiff became frustrated and refused to discuss the topic further. Id. at 121:5–10. Kaplan asked her to calm down. Id. at 122:8–9. Plaintiff considered Kaplan’s comment sexist and ejected him from her office. Id. at 122:10–14. Later that night, Plaintiff emailed Pacina, stating that Kaplan had spoken to her in a condescending tone, id. at 125:13–15, and that she was “disappointed that it is 2019, approaching 2020, in a major hospital organization in New York, and [she] still ha[d] to contend with male chauvinism,” id. at 126:5–7.
Swirnow called Plaintiff two days later. Id. at 128:10–14. They agreed Plaintiff would no longer go to the Huntington facility and that she could use her Lake Success office five days a week. Id. at 130:24–131:5. Plaintiff told Swirnow that she would nevertheless maintain her HR complaint. Id. at 131:6–16. Swirnow unenthusiastically assented. Id. at 131:17–19.
Plaintiff and Pacina continued to correspond via email regarding Plaintiff’s complaint throughout October and November of 2019. Id. at 133:8–137:9. During that time, despite Swirnow’s assurances that Plaintiff could keep her Lake Success office full time, Antonik and Kaplan notified Plaintiff that they were going to move another doctor into her office on Thursdays. Id. at 137:13–19.
In 2020, as her contract neared the end of its term, Plaintiff contacted Rubin about renewing her contract with NYU. at 147:6–9. Rubin responded that NYU would let her know its plans. Id. Meanwhile, NYU had commenced internal deliberations regarding Plaintiff’s performance. Miriam Ruiz, the office manager who oversaw Plaintiff’s suite, notified her supervisor, Antonik, regarding several issues with Plaintiff’s work. Id. at 500:18–501:8, 580:18–19, 810:23–24. When Antonik raised those issues with his supervisor, Kaplan, id. at 500:18–501:8, Kaplan asked Antonik for more information, id. at 500:7–9, 501:9–13. Antonik emailed Dr. Porges and Ruiz, stating that Kaplan “requested all information on Edleman [sic] to be sent to him today. We need a clear, convincing summary with examples sent.” Plaintiff’s Ex. 86 at 2. Ruiz later testified that she maintained a spreadsheet for each doctor in her suite, noting issues they had and complaints against them. Trial Tr. 821:21–24. However, the earliest entry on Ruiz’s spreadsheet regarding Plaintiff was dated November 13, 2019. Id. at 150:5–9. Based on Kaplan’s request, Ruiz provided the spreadsheet she maintained on Plaintiff to Antonik. Id. at 826:12–13. Antonik drafted Ruiz’s spreadsheet entries into an email that he sent to Dr. Porges. Id. at 504:24–505:2. Dr. Porges then sent an email to Kaplan, explaining that he had received frequent complaints from clinical and administrative staff about Plaintiff—including about her treatment of other NYU employees and her excessive test and x-ray orders—and providing the issues Antonik had compiled. See Plaintiff’s Exs. 1, 86; Trial Tr. 504:24–505:2, 612:6–9. Kaplan forwarded Dr. Porges’s message to Swirnow. Trial Tr. 616:15–18. When he later spoke to Kaplan, Swirnow said that he and Rubin would “take it from here.” Id. at 617:17–21. Swirnow and Rubin spoke to Dr. Porges about his concerns with Plaintiff. Id. at 677:10–12, 886:2–10. Swirnow and Rubin also spoke to Dr. Goldberg, who echoed Dr. Porges clinical concerns with Plaintiff’s performance. Id. at 677:15, 762:22–763:1, 886:2–10. Both Dr. Porges and Dr. Goldberg stated that they did not believe mentoring could resolve Plaintiff’s performance issues. at 762:18–763:3. Rubin spoke to other clinicians as well regarding Plaintiff. Id. at 893:1. Ultimately, Rubin decided not to renew Plaintiff’s contract. Id. at 905:13–15.
NYU sent Plaintiff a letter in early December 2020, informing her that it would not renew her employment contract. Id. at 147:23–148:5. Plaintiff called Rubin, who told her that NYU had decided to go in a different direction, but he offered to help her find a new position. Id. at 148:19–149:7. After searching for a new job, Plaintiff accepted a position in Clearwater, Florida as a rheumatologist with the Arthritis and Rheumatism Associates on February 16, 2021. Id. at 228:25–229:21.
PROCEDURAL HISTORY
Plaintiff filed a charge of sex discrimination and retaliation with the Equal Employment Opportunity Commission on January 5, 2021. Dkt. No. 1 ¶ 58. She commenced the instant suit against the Defendants on January 20, 2021. See Dkt. No. 1. Plaintiff filed a first amended complaint on January 22, 2022. Dkt. No. 96. Her first amended complaint claimed violations of equal pay protections as well as discrimination and retaliation. See id. ¶¶ 60–112. Defendants moved for summary judgment on all of Plaintiff’s claims on February 18, 2022. Dkt. No. 108. On September 28, 2022, the Honorable Lorna G. Schofield, to whom the case was then assigned, granted Defendants’ motion for summary judgment in part and denied it in part. Dkt. No. 155. Specifically, Judge Schofield granted Defendants summary judgment on Plaintiff’s discrimination claims under federal and state law. Id. at 33. But the Court ruled that Plaintiff had adduced sufficient evidence to proceed on: her federal unequal pay claims against NYU, Swirnow, and Rubin; her Title VII retaliation claim against NYU; her New York state and New York City retaliation claims against Defendants; and her discrimination claim under New York City law based on allegedly sexist remarks.
With leave of the Court, Dkt. No. 169, Plaintiff filed the operative Second Amended Complaint on December 8, 2022, Dkt. No 170. The Second Amended Complaint added an unequal pay claim against the Defendants under New York state law. Id. ¶¶ 58–62.
On June 7, 2023, the case was reassigned to the undersigned. After ruling on the parties’
motions
in limine
, Dkt. Nos. 221, 224, the Court held an eight-day jury trial beginning on July
10, 2023. At the close of Plaintiff’s case on July 18, 2023, Defendants moved for judgment as a
matter of law (“JMOL”), pursuant to
Following the close of evidence and the parties’ summations, the Court charged the Jury on each of Plaintiff’s claims. at 1439:24–1446:21 (Equal Pay Act), 1447:1–1450:13 (New York Labor Law), 1450:14–1456:13 (Title VII retaliation), 1456:14–1463:3 (New York State Human Rights Law retaliation), 1463:4–2468:21 (New York City Human Rights Law retaliation), 1468:22–1470:10 (New York City Human Rights Law discrimination).
On July 20, 2023, the Jury returned its verdict. Dkt. No. 243. First, the Jury found that Plaintiff had not proven that her job at NYU required substantially equal skill, effort, and responsibility to any of her three male comparators—namely, Dr. Goldberg, Dr. Porges, and Dr. Modi. Id. at 1. The Jury further found that Plaintiff had proven she performed her job under similar working conditions to those comparators, but that she had not proven she was paid less than any of those men for doing substantially equal work. Id. at 1–2. Moreover, the Jury found that Defendants had proven that differences in pay between Plaintiff and her male comparators were based on factors other than sex for purposes of both her federal and New York state unequal pay claims. Id. at 2.
As for Plaintiff’s discrimination claim, the Jury found that Plaintiff failed to prove that NYU or Antonik intentionally discrimination against her based on her gender by making sexist remarks. Id. at 6.
Finally, the Jury returned a verdict in Plaintiff’s favor on her retaliation claims under federal, state, and city law. The Jury found Plaintiff had proven that she engaged in a protected activity under federal law and that NYU had taken adverse action against her because of that protected activity. Id. at 3. Likewise, the Jury determined that Plaintiff had proven that NYU committed an adverse act against her because of her protected conduct under state law, and that Antonik—but not Rubin or Swirnow—aided or abetted NYU’s retaliation. Id. at 4. And the Jury found that NYU and Antonik, though not Rubin or Swirnow, engaged in conduct that was motivated at least in part by Plaintiff’s protected activity, that NYU and Antonik’s conduct was would reasonably likely deter a person from engaging in that protected activity, and that Antonik aided or abetted retaliatory conduct. Id. at 4–5. The Jury calculated Plaintiff’s damages for her retaliation claims to be $700,000 in front pay. at 7.
The Court entered Judgment in accordance with the Jury’s verdict on July 26, 2023. Dkt.
No. 260.
The parties filed the instant cross-motions under
LEGAL STANDARD
The moving party’s burden on a motion pursuant to
“A post-trial
Because
“The standard for granting a new trial under
A trial judge’s discretion to grant a new trial “includes overturning verdicts for
excessiveness and ordering a new trial without qualification, or conditioned on the verdict
winner’s refusal to agree to a reduction (remittitur).”
Kirsch v. Fleet St., Ltd.
,
DISCUSSION
I. Plaintiff’s Motion for a JNOV or New Trial
Plaintiff moves for a JNOV or, alternatively, a new trial on her unequal pay claims under
the federal Equal Pay Act (“EPA”), 29 U.S.C.
As an initial matter, Plaintiff did not move for JMOL pursuant to
To establish a
prima facie
EPA claim, a plaintiff must demonstrate: “i) the employer pays
different wages to employees of the opposite sex; ii) the employees perform equal work on jobs
requiring equal skill, effort, and responsibility; and iii) the jobs are performed under similar
working conditions.”
Eisenhauer v. Culinary Inst. of Am.
,
NYLL § 194(1) “employs language extremely similar to the EPA.”
Hatzimihalis
, 2023
WL 3764823, at *4. Generally, “[a]n equal pay claim under
Plaintiff challenges the jury’s finding that she did not perform equal work to Dr. Modi [2] for purposes of her prima facie EPA claim, see Dkt. No. 243 at 1, as she avers that the evidence at trial “ established that she and Dr. Modi had jobs requiring substantially equal skill, effort, and responsibility,” Dkt. No. 272 at 8. Defendants respond that Dr. Modi’s greater experience, higher RVU target, and larger patient population amply support the jury’s finding that he and Plaintiff did not perform equal work. Dkt. No. 277 at 15–17.
“ While the equal work inquiry does not demand evidence that a plaintiff’s job is
‘identical’ to a higher-paid position, the standard is nonetheless demanding, requiring evidence
that the jobs compared are ‘substantially equal.’”
EEOC v. Port Auth. of N.Y. & N.J.
, 768 F.3d
247, 255 (2d Cir. 2014) (quoting
Lavin-McEleney v. Marist Coll.
,
Here, the evidence at trial establishes that Plaintiff did not perform equal work to Dr.
Modi because their positions did not require substantially equal effort. Several witnesses—
including Plaintiff, Dr. Mehta, Swirnow, and Rubin—testified that RVUs are an important metric
for healthcare providers such as NYU to quantify and track each physician’s productivity by
services rendered.
See
Trial Tr. 85:18–20 (Plaintiff), 85:5–14, 331:9–11, 381:9–12, 407:25–
408:13 (Dr. Mehta), 706:7–9 (Swirnow), 926:2–15 (Rubin). As their testimony confirms,
“RVUs are numbers representing, in relative terms, the time and effort required to perform a
particular medical procedure.”
[3]
Am. Soc. of Dermatology v. Shalala
,
Plaintiff seeks to avoid that conclusion by arguing that she and Dr. Modi were required to
expend substantially equal effort, because both of their contracts included a section entitled
“Effort and Compensation” that required them to devote 100% of their effort to clinical
activities, instead of educational leadership, research, or administration. Plaintiff’s Exs. 8 at 5, 9
at 3, 108 at 6;
see
Dkt. No. 272 at 10; Dkt. No. 282 at 5. According to Plaintiff, the fact that she
and Dr. Modi provided those same kind of services on behalf of NYU is dispositive. Dkt. No.
282 at 6 (“[T]he test is whether the comparators perform the same type of work.”). She contends
that looking instead to RVU targets to compare the effort required by Plaintiff and Dr. Modi’s
positions “confuse[s] the amount of work with the type of work.” But Plaintiff’s arguments
misstate the governing legal principles. Contrary to her assertion that kind, not degree, defines
equality of effort, courts have determined that “[t]he focus is on the quantum of effort necessarily
expended, not on the kind of effort or the manner of exertion.”
Marshall
,
Where substantial differences exist in the amount or degree of effort required to be expended in the performance of jobs, the equal pay standard cannot apply even though the jobs may be equal in all other respects. . . . [J]obs may require equal effort in their performance even though the effort may be exerted in different ways on the two jobs. Differences only in the kind of effort required to be expended in such a situation will not justify wage differentials.
Additionally, Plaintiff contends that the evidence shows she performed equal work to Dr.
Modi notwithstanding his higher RVU target because “ there is no correlation between
compensation and the number of []RVUs.” Dkt. No. 282 at 5. In support of that assertion, Plaintiff
merely cites her own testimony that Dr. Louise Raminfard, a female rheumatologist at NYU, had a
salary of $265,000 and RVU target of 3,900,
id.
(citing Trial Tr. 337:15 – 338:2), and a portion of
Defendants’ summation,
[5]
id.
(citing Trial Tr. 1366:24 – 1367:10). If differences between two
positions do not affect compensation, then “the facts as a whole [may] support the conclusion that the
differences are too insubstantial to prevent the jobs from being equal in all significant respects under
the law.”
EEOC v. Port Auth. of N.Y. & N.J.
,
Even if Plaintiff had established a
prima facie
EPA claim, that claim would still fail
because the evidence at trial demonstrates that the difference between Plaintiff’s pay and Dr.
Modi’s pay is attributable to a factor other than sex. The Second Circuit recently held that to
establish the affirmative defense that a pay differential for equal work is “based on any other
factor other than sex,”
Eisenhauer
,
Thus, the Jury’s verdict comports with the weight of the evidence and Plaintiff has not
shown that the Jury reached a seriously erroneous result or that the verdict amounts to a
miscarriage of justice.
See Manley
,
Plaintiff’s NYLL claim fares no better. NYLL
In sum, neither a JNOV nor a new trial is warranted on Plaintiff’s unequal pay claims under the EPA and NYLL. The Court therefore denies Plaintiff’s motion.
II. Defendants’ Motion for a JNOV or Remittitur
Defendants move for a JNOV on Plaintiff’s retaliation claims against NYU and Antonik
under Title VII of the Civil Rights Act (“Title VII”),
Unlike Plaintiff, Defendants moved for JMOL during the trial pursuant to
Defendants’ JMOL motion sufficiently raised the arguments in their JNOV motion. First, Defendants stated:
[P]laintiff’s communications never said anything about anyone calling her a bitch. Her communications were that she felt slightly intimidated because a tall guy came into her office and waved his arms. Those were not complaints about discrimination, fairly read. They were not understood by NYU to be complaints about discrimination.
Trial Tr. 1302:3–8. Defendants argued that no reasonable observer would—and no NYU
personnel did—understand Plaintiff’s complaints to raise gender-based discrimination, as
opposed to a mere interpersonal dispute between coworkers. Defendants’ present argument is
somewhat narrower: that a specific NYU employee, Antonik, did not understand Plaintiff’s
complaint to allege gender-based discrimination. But while Defendants “frame[] the argument
slightly differently,” their JNOV argument is “closely enough related to the ‘grounds specified in
[Defendants’]
Second, Defendants argued that the evidence established that when Rubin decided not to
renew Plaintiff’s contract, he “didn’t take any of the prior complaints into consideration. He was
considering only the clinical factors.” Trial Tr. 1303:22–24;
see also id.
at 1302:18–21 (“[T]he
testimony uniformly—every single witness—was that the prior complaints about office space
had nothing to do with the decision to nonrenew the contract.”). In their colloquy with the Court,
Defendants also contended that Rubin was not manipulated for purposes of a cat’s paw theory,
because “the evidence is just overwhelming that he was basing his decision, in good faith, on
what he was told by the people he relies upon at NYU.” at 1304:10–12. Defendants’
affirmative arguments and responses to the Court’s questions gave Plaintiff adequate notice of
the purported deficiencies in her proof that improper considerations influenced Rubin’s non-
renewal decision and that his decision did not reflect good faith and due care.
See Galdieri-
Ambrosini
,
Because Defendants’ JNOV motion renews arguments specifically raised in their JMOL
motion at trial, the Court must determine whether Defendants have either identified “a complete
absence of evidence supporting the verdict,” such that the Jury must have based its verdict on
“sheer surmise and conjecture,” or shown that “the evidence in favor of the movant is so
overwhelming that reasonable and fair minded [persons] could not arrive at a verdict against
[it].”
Wiercinski
,
To prevail on a retaliation claim under Title VII, the plaintiff must show
“(1) participation in a protected activity; (2) that the defendant knew of the protected activity;
(3) an adverse employment action; and (4) a causal connection between the protected activity
and the adverse employment action.”
Littlejohn v. City of N.Y.
,
When “an employee is fired or subjected to some other adverse employment action by a
supervisor who himself has no [retaliatory] motive,” the employer can nevertheless be held liable
for retaliation under a “cat’s paw” theory if the supervisor was “manipulated by a subordinate
who does have such a motive and intended to bring about the adverse employment action.”
Vasquez
,
“The same standards govern retaliation claims under Title VII and the NYSHRL.”
[11]
Kraiem
,
The NYCHRL is sufficiently distinct from its federal and state counterparts that
“NYCHRL claims must be analyzed separately and independently.”
Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc.
,
(1) he or she engaged in a protected activity as that term is defined 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.
,
Santiago v. ACACIA Network, Inc.
,
Finally, the NYSHRL and NYCHRL differ from Title VII in permitting individual
liability. “Title VII does not provide for individual liability.”
Cayemittes v. City of N.Y. Dep’t of
Hous. Pres. & Dev.
,
Making all credibility determinations and drawing all reasonable inferences in Plaintiff’s favor, there is a complete absence of evidence supporting the proposition that Antonik was aware that Plaintiff’s complaint concerned gender discrimination. To the contrary, the evidence favoring Defendants on that issue is so overwhelming that reasonable persons could not return a verdict in Plaintiff’s favor on her retaliation claims. Plaintiff testified at trial that she first reported the incident with Antonik to HR during a phone call with Pacina, Trial Tr. 116:24, in which Plaintiff explained: “My complaint was about . . . the hostile and abusive behavior that had occurred the day before with Mr. Antonik; that I didn’t feel safe and I wanted it rectified; that I felt that it was a sexist, discriminatory, chauvinistic attack and it needed to be addressed with HR,” id. at 117:2–6. Plaintiff explained what had transpired with Antonik. Id. at 117:6–7. She stated that she believed “[t]he way he was speaking to me, telling me that nothing in that office belongs to me” was sexist because “[t]here was no seniority that he had over me to say that he, he had – that it belonged to him more than me. The only difference was that he was a male, and he was saying he owned me.” Id. at 117:16–19. Plaintiff neither testified nor adduced any other evidence indicating she told Pacina that Antonik had called her a “bitch.”
Pacina testified that she did not understand Plaintiff’s complaint to concern the way she was treated vis-à-vis her gender. at 1100:23–25; see also id. at 1109:24–1110:1 (“Q. Did it occur to you, based on this complaint, that Dr. Edelman was complaining about gender or sex discrimination? A. No.”). Instead, Pacina testified that she understood Plaintiff’s grievance to concern “office space,” id. at 1101:13, though Pacina acknowledged Plaintiff may have also complained about “the way she was spoken to,” id. at 1101:12–13. Pacina stated that, while on the phone with Plaintiff, Pacina memorialized their conversation in notes on NYU’s HR system. Id. at 1106:19–24. Those notes provide:
[E]mployee wants to make a complaint against Joe Antanik. at the end of patient hours yesterday, she had a conversation with Joe around 3:30-3:35 on 9/16 on in her office. she was on the office on the phone with her daughter, he came into her office and said that directive above was that they wanted to move the rhum into 1 space and that he had a specific request - that another doctor would be using her personal consult office during Thursday and Friday. laying down the foundation - he insinuated who was moving where and he didnt dictate who made the decision. she said that she uses the office on Friday to do clinical work and he said “how often are you really here”. He was sitting and he was pointing at things in her office and was intimidating. He said you really think this (office) is yours - throwing his arms and pointing at things. she stated that contractually the office is designated for her and he replied that he will bring this up to the powers that be. then he left, walked out. her heart was racing. was supposed to be calling patients back and she was very uncomfortable after this conversation.
Plaintiff’s Ex. 21.
Following her call with Plaintiff, Pacina spoke to Antonik about the incident. See id. at 1107:23–1108:2. Antonik testified that during that conversation “[Pacina] had explained the nature of the complaint [and] I had explained my understanding of what happened, my version of it.” Id. at 523:23–25. He also testified that this conversation was when he first learned about Plaintiff’s complaint. Id. at 523:16–18. Pacina again memorialized the conversation in notes on NYU’s HR system. Id. at 1107:23–1108:2. Her notes state:
call with Joe - he didnt raise his arms. she doesnt come in fridays. maybe 1 friday a month for 2 hours. explained that there was a need to use the office. she defense and snide. she said i have a contract and you can have them call my lawyers. she said that she was promised the officer per her contract and he said thta he wasnt aware and that she would bring it up to the power that to be address. if the friday are no good then what about thursday. she was unwilling and not flexible to let others use this office. it wasn’t personal to her or targeted to her because this happens often. advised that i would reach out to David Kaplan and that he should meet to Dr. Edelman.
Plaintiff’s Ex. 21. Both Pacina and Antonik testified that those notes reflected their discussion. at 524:10–18, 1107:24–1108:2.
Viewing the evidence at trial in Plaintiff’s favor, she told Pacina about a dispute with Antonik that began over office space but ended with Antonik waving his arms in an intimidating manner and disrespecting Plaintiff by insisting that NYU owned her and her office. Plaintiff stated that she considered Antonik’s behavior sexist because Antonik’s administrative position was subordinate to Plaintiff’s as a rheumatologist, so she believed the only reason he spoke to her the way he did was because he was a man. Despite what Plaintiff may have hoped to convey in her complaint, however, Pacina’s testimony and contemporaneous notes indicate that Pacina had a different understanding of Plaintiff’s grievance: Pacina believed that Plaintiff objected to Antonik’s directive to share her office, his insinuation that she was seldom in the office, the intimidating way in which he pointed at items in Plaintiff’s office, and his threat to escalate the issue to management. Yet there is no evidence that Plaintiff told Pacina that Antonik called Plaintiff a “bitch,” nor that Pacina interpreted Plaintiff’s complaint as raising gender-based concerns. When Antonik later learned about Plaintiff’s complaint, he did so through a conversation with Pacina, not Plaintiff. Pacina relayed her understanding of Plaintiff’s concerns to Antonik. And Pacina’s notes illuminate what Antonik was told and how he responded. Antonik and Pacina discussed how often Plaintiff used her office on Fridays, whether or not he raised his arms, and why he said he would escalate the issue to the powers that be. Antonik also stated that he took exception to Plaintiff’s tone, which he found defensive and snide. Accordingly, there is no evidence that Pacina relayed any gender-based allegations or concerns to Antonik when she conveyed the substance of Plaintiff’s complaint to him; instead, all of the evidence of Pacina’s conversation with Antonik indicates that they understood and treated Plaintiff’s HR complaint as an interpersonal dispute about office space, aggressive pointing, disrespectful tones of voice, and a threat to get management involved. But an employee’s complaint regarding a colleague’s aggressive or rude demeanor does not, on its own, constitute a complaint about gender discrimination—even if the coworkers differ in gender or size. Nor is there any evidence that Antonik was privy to Plaintiff’s subsequent communications regarding her complaint with Antonik. Thus, the evidence at trial establishes that the sole occasion on which Antonik was told about the substance of Plaintiff’s complaint, Pacina did not relay any gender-based grievances or concerns.
Although Plaintiff raises eight separate grounds from which the Jury could have inferred Antonik’s awareness that she had complained to HR about gender discrimination, none is availing. Instead, they amount to an assertion that anyone who learns an employee has lodged a complaint is ipso facto aware that the complaint concerns discrimination. But law and logic alike require more. Without some indication that the plaintiff has challenged discrimination , a workplace complaint remains just that: a grievance about one’s working conditions. Employers are not obligated to treat every complaint as reporting discrimination until shown otherwise. Much less are coworkers presumed to know that any complaint, no matter its content, opposes discrimination.
First, Plaintiff avers that the Jury could infer that Antonik knew Plaintiff’s complaint
alleged gender discrimination because Antonik knew he had acted in a sexist manner and called
Plaintiff a “bitch.” Dkt. No. 278 at 18. As a legal principle, Plaintiff’s argument proves too
much. The occurrence of sexist conduct and submission of a complaint cannot alone establish
that the complaint is about discrimination—particularly where, as here, the complainant had
grounds for complaint entirely apart from whether the conduct directed towards him or her was
based on gender. While an “explicit” allegation of unlawfulness is not required,
Tulino v. City of
N.Y.
,
Second, Plaintiff observes that Antonik reported the dispute to Kaplan. Dkt. No. 278 at
12 (citing Trial Tr. 568:7–569:18). Plaintiff argues the Jury “could reasonably infer that he
escalated the situation because he realized that he acted unlawfully . . . and wanted to get ahead
of any fallout that might result for what he anticipated would be a complaint from [Plaintiff.]”
Just as he told Plaintiff he would, Antonik reported her unwillingness to share her office to
his superior. Yet Plaintiff did not adduce any evidence suggesting Antonik did so because he
knew Plaintiff would lodge a gender-discrimination complaint with HR. To infer that motivation
in the absence of such evidence would amount to the kind of “rank speculation and conjecture”
that is insufficient to support a jury verdict.
Airday v. City of N.Y.
,
Third, because Pacina discussed Plaintiff’s complaint with Antonik, Plaintiff contends the
Jury could have reasonably inferred that “Pacina, as an experienced HR manager, fully informed
Antonik about [Plaintiff’s] complaint, including that he called her a bitch and that [Plaintiff]
complained that Antonik acted in a demeaning and harassing manner because of her sex.” Dkt.
No. 278 at 12. But the only evidence of what Pacina and Antonik discussed—that is, their
testimony and Pacina’s HR notes—is to the contrary. Thus, it would be unduly “speculative” for
the jury to assume Antonik “must have been informed of [Plaintiff’s] protected activity” during
his conversation with Pacina without any countervailing evidence to support that conclusion.
Olaechea
,
Fourth, Plaintiff asserts that “Antonik even admitted that he understood [Plaintiff’s] complaint was not about office space but rather about him and his sexist conduct.” Dkt. No. 278 at 13. However, the testimony Plaintiff cites in support of that contention belies her assertion. Plaintiff directs the Court to Antonik’s testimony that he understood Plaintiff’s complaint was not really about office space but rather about the way Antonik spoke to Plaintiff, Trial Tr. 530:5– 10, but Antonik’s testimony does not mention sexism or gender nor suggest that the grievance about his manner of speech was related to gender, see also id. at 570:3–25. Consequently, the Jury could not have treated those statements as an admission that Antonik knew Plaintiff’s complaint concerned gender-based discrimination.
Fifth, Plaintiff notes Antonik’s testimony that he was upset Plaintiff complained about
him. Dkt. No. 278 at 13;
see
Trial Tr. 530:11–13. Plaintiff argues that the Jury “could
reasonably infer that he was bothered because he knew that [Plaintiff] had logged [sic] a
discrimination and harassment complaint against him.” Dkt. No. 278 at 13. Yet that reasoning
crosses the line from reasonable inference to conjectural leap. Coworkers involved in an
interpersonal dispute will almost invariably dislike each other afterwards, particularly if one
coworker reports the other to HR. Deeming such resentment sufficient to show an awareness of
protected activity would dilute that element of retaliation beyond recognition.
Cf. Zacharowicz
v. Nassau Health Care Corp.
,
Sixth, Kaplan emailed Swirnow on September 18, 2019: “just received a call from
Kathleen Pacina from Labor Relations, apparently Dr. Edelman filed a complaint against Joe
Antonik for being aggressive and retaliating for not allowing her to expand her hours.”
Defendants’ Ex. SS. Plaintiff asserts that “[a]s the director of Antonik, and someone who works
closely with him, it is reasonable for the jury to infer that Kaplan shared the contents of this
email with Antonik.” Dkt. No. 278 at 13. The Jury could not reasonably infer that Kaplan and
Antonik discussed that email simply because they worked together.
See Cardwell v. Davis Polk
& Wardwell LLP
,
Seventh, because Plaintiff followed up with Pacina regarding the status of her complaint,
Plaintiff argues the Jury could have reasonably inferred “HR followed up with Antonik about
[Plaintiff’s] subsequent emails.” Dkt. No. 278 at 13. Yet Plaintiff does not identify testimony or
documentary evidence suggesting HR had follow-up communications with Antonik regarding
her complaint. In the absence of supportive evidence, a jury finding that such communications
occurred could rest only on sheer surmise.
See Cardwell
,
Eighth, Plaintiff argues that the Jury could have inferred Antonik was aware that her complaint concerned discrimination based on “Antonik’s subsequent adverse actions against [her] after her complaint.” Dkt. No. 278 at 14. Specifically, Plaintiff avers that Antonik’s unwillingness to expand Plaintiff’s hours, Ruiz’s compilation of issues with Plaintiff beginning shortly after her complaint, and Antonik’s “coordinating and encouraging her fellow employees to provide negative feedback about [Plaintiff]” evince an awareness that Plaintiff’s complaint raised gender discrimination. Indeed, after Kaplan asked Antonik to gather information on Plaintiff’s issues, Trial Tr. 500:7–9, Antonik fulfilled that request with alacrity. He emailed colleagues at NYU’s Lake Success office and solicited “recent examples of inappropriate behavior and commucat[ions] between Edelman, staff and patients.” Plaintiff’s Ex. 86 at 2. Less than two hours later, Antonik had compiled a list of issues from Ruiz, Trial Tr. 823:7–15, and sent them to Dr. Porges, Plaintiff’s Ex. 86 at 1. Once again, the jury could conclude that Antonik’s actions betray an obvious aversion to Plaintiff, but no evidence supports that that he disliked Plaintiff and compiled the list of issues because she complained about gender discrimination. Permitting Plaintiff to treat adverse actions as sufficient to show an awareness of protected activity would deprive the awareness requirement of independent meaning. Under that theory, a plaintiff who suffered an adverse employment action but took no steps to inform his employer that the adverse action was based on gender would automatically be able to proceed to and prevail at trial, notwithstanding the absence of evidence that the adverse action was based on gender. Yet courts have time and again granted summary judgment under precisely those circumstances. [12] In doing so, courts have implicitly rejected Plaintiff’s conflation of a defendant’s adverse action and awareness of protected activity. Plaintiff’s argument is also factually infirm. While Antonik’s actions reflect his admitted dislike for Plaintiff, the further inference that Antonik disliked Plaintiff because he knew she filed a discrimination complaint against him is based on sheer conjecture, rather than evidence or sound reasoning.
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. 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
,
At oral argument, Plaintiff suggested in passing that Pacina, Porges, or Rubin could have
instead supplied the retaliatory intent for cat’s paw liability.
See
Oral Arg. Tr. 16:5–9, 17:13–16.
Plaintiff did not raise that argument in her post-trial briefing, so the Court deems it waived.
Wade Park Land Holdings, LLC v. Kalikow
,
App’x 39 (2d Cir. 2020) (summary order). Dr. Porges participated in discussions with Swirnow
and Rubin regarding whether to renew Plaintiff’s contract. Trial Tr. 967:24–25. And Dr. Porges
testified that he knew Plaintiff had complained about harassment.
Id.
at 1133:14–19. However,
he also testified that the concerns he relayed to Swirnow and Rubin “had nothing to do with any
HR complaints.” at 1237:7. The parties have not cited—nor the Court identified—any
evidence to support that Dr. Porges intended to retaliate against Plaintiff because she complained
about discrimination. Given that total absence, Plaintiff cannot prevail on a cat’s paw theory
based on Dr. Porges’s intent.
See Oliver v. N.Y. State Police
,
Plaintiff’s failure to adduce any evidence of retaliatory intent to support her cat’s paw
theory requires the Court to grant a JNOV in NYU’s favor on each of her retaliation claims.
See Wiercinski
,
JNOV is also warranted on Plaintiff’s retaliation claims against Antonik. Individual
liability for aiding and abetting retaliation under the NYSHRL “requires that the aider and
abettor share the [retaliatory] intent or purpose of the principal actor.”
Dodd v. City Univ. of
N.Y.
,
In sum, the complete absence of evidence that Antonik was aware that Plaintiff’s complaint against him alleged gender discrimination requires a JNOV in Defendants’ favor on her retaliation claims for lack of retaliatory intent. [17] Because the Court directs a verdict in Defendants’ favor on all of Plaintiff’s retaliation claims, the Court also vacates the Jury’s corresponding award of compensatory damages. Consequently, the Court does not address Defendants’ motion for remittitur.
CONCLUSION
Plaintiff’s motion for judgment as a matter of law or a new trial, Dkt. No. 271, is DENIED. Defendants’ motion for judgment as a matter of law, Dkt. No. 267, is GRANTED.
The Clerk of Court is respectfully directed to close Dkt. Nos. 267 and 271, enter judgment in favor of Defendants, and close this case.
SO ORDERED.
Dated: December 26, 2023 __________________________________
New York, New York LEWIS J. LIMAN United States District Judge
Notes
[1] While “the sufficiency of the evidence is not the only ground to order a new trial,”
Saleh v.
Pretty Girl, Inc.
,
[2] Although Plaintiff argued at trial that Dr. Goldberg and Dr. Porges were also appropriate male comparators for her unequal pay claims, her post-trial motion exclusively challenges the jury’s findings as to Dr. Modi. See Dkt. No. 282 at 1 (“ [E]vidence related to Drs. Andrew Goldberg and Andrew Porges . . . is beyond the scope of the instant motion and therefore not at all pertinent to the question before this Court.” (cleaned up) ).
[3] Plaintiff testified that RVUs are an imperfect measure of productivity because certain procedures, like venipuncture, have RVU values of zero. Trial Tr. 103:8–11.
[4] Whether a plaintiff can “establish[] a
prima facie
case [under the EPA] by identifying a single
male-comparator employee who earns more than her” remains an open question in the Second
Circuit.
Eisenhauer
,
[5]
But see United States v. Arboleda
,
[6] At oral argument Plaintiff challenged the significance of RVUs by emphasizing that the Court
had declined to instruct the jury on systems which measure earnings by quantity or quality of
production. Oral Arg. Tr. 33:5–12;
see also
Dkt. No. 272 at 15. Because such a system is an
affirmative defense,
see Aldrich v. Randolph Cent. Sch. Dist.
,
[7] Because Dr. Modi’s location and seniority adequately support the verdict as to Defendants’ affirmative defense, the Court need not address their arguments that Dr. Modi’s pay also reflected two additional factors other than sex—namely, his managerial background and higher salary before joining NYU. Dkt. No. 277 at 21, 23.
[8] Because Plaintiff has not identified any appropriate comparators, the Court need not address
“how many comparators are necessary to establish a
prima facie
case under [NYLL]
[9] Defendants’ JMOL motion also challenged: Plaintiff’s claims against corporate entities other than NYU Grossman School of Medicine, Trial Tr. 1298:17–1299:1; her equal pay claims, id. at 1298:17–1300:16; her discrimination claim, id. at 1304:16–1308:6; and her asserted damages, id. at 1308:7–1309:12.
[10] The court in
Silivanch v. Celebrity Cruises, Inc.
,
[11] Even if Plaintiff’s NYSHRL retaliation claims were governed by the more liberal standards
that apply to “claims that accrued on or after October 11, 2019,”
Arazi v. Cohen Bros. Realty
Corp.
,
[12]
See, e.g.
,
Concha v. Purchase Coll. State Univ. of N.Y.
,
[13] Oral Arg. Tr. 23:21–24 (“I think the jury could reasonably conclude that there was more than just office space or just about yelling because of what [Antonik] did. He’s the one that instigated this whole exercise.”), 26:22–23 (“NYU clearly gave effect to Antonik’s retaliatory intent.”).
[14] Plaintiff’s assertion at oral argument that general corporate knowledge could suffice is misplaced. Oral Arg. Tr. 16:12–18, 17:17–19. While general corporate knowledge can satisfy the knowledge requirement in a plaintiff’s prima facie case of retaliation, see Zann Kwan , 737 F.3d at 844, a plaintiff pursuing cat’s paw liability must also show that the manipulating
[15] See Trial Tr. 941:10–16 (“Q. At the time [the renewal process] was going on, did you have personal knowledge of any complaint by Dr. Edelman pending in the employee and labor relations department? A. None whatsoever. Q. Had you ever heard of such a complaint at this time or previously? A. None whatsoever.”); see also id. at 885:10–13 (“Q. You were made aware of a complaint, right? A. You asked me an HR complaint. I was not made aware of an HR complaint. I was aware of a complaint relating to an office dispute.”).
[16] See Trial Tr. 944:25–945:6 (“Q. Did that nonrenewal of the contract have anything to do with any animus you held against Dr. Edelman? . . . A. I had no animus against Dr. Edelman. I was, as I am today, saddened by the situation.”).
[17] By contrast, Defendants are not entitled to a JNOV on Plaintiff’s retaliation claims on the
grounds that the “overwhelming and uncontradicted evidence shows” that Rubin decided not to
renew Plaintiff’s contract based on the clinical concerns of Drs. Porges and Goldberg, rather than
the information compiled by Antonik. Dkt. No. 270 at 13. The standard for judgment as a
matter of law requires the Court to view the evidence in the light most favorable to Plaintiff and
not to examine the weight of conflicting evidence. And, viewing the evidence in the light most
favorable to Plaintiff, a reasonable jury could find that, at the time he made the decision not to
renew Plaintiff’s contract, Rubin was aware of the “recent examples of inappropriate behavior
and commucat[ions] between Edelman, staff and patients,” Plaintiff’s Ex. 86 at 2, that had been
compiled by Antonik and included in the email that Dr. Porges sent to Kaplan, in which Dr.
Porges also expressed clinical concerns with Plaintiff’s use of tests and x-rays, Plaintiff’s Ex. 1
at 1–2. In particular, Kaplan forwarded Dr. Porges’s email to Swirnow,
id.
at 1, and there is
evidence Swirnow shared the substance of the email with Rubin, Trial Tr. 761:14–15. Rubin
testified that the concerns in Dr. Porges’s email were “the only thing that led to the nonrenewal”
of Plaintiff’s contract. at 907:7. From the timing of the email with Antonik’s information, as
well as from the fact that Rubin could not recall the specific issues Dr. Porges raised,
id.
at
939:6–8 (“Dr. Porges went through me with what the clinical issues were – practice style, and
just rattled off a whole bunch of stuff.”);
id.
at 889:23–25 (“Q. Now, the issues that were raised
were too many blood tests, right? A. Amongst other things. I don’t recall all the details.”), there
is at least some evidence that the issues raised by Antonik were both a contributing factor and a
but-for factor in the decision not to renew Plaintiff’s contract. The Court does not decide
whether the conclusion that Antonik influenced Rubin’s decision not to renew Plaintiff’s contract
was against the weight of the evidence for purposes of