The opinion of the court was delivered by: Gerard E. Lynch, District Judge
In this employment discrimination action, plaintiff Anucha Browne Sanders charges that defendants Madison Square Garden, L.P., ("MSG"), Isiah Lord Thomas III, and James L. Dolan subjected her to discrimination on the basis of sex, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. ("SHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107 et seq. ("CHRL"). Plaintiff moves for summary judgment on her retaliation claim, arguing that defendants have failed to show a genuine issue of material fact as to that claim. Defendant Thomas moves for summary judgment on that same claim insofar as it is asserted against him. Defendants MSG and Dolan move for summary judgment on plaintiff's claims for pecuniary damage, arguing that her claims should be limited based on the discovery of after-acquired evidence. Finally, all defendants move for summary judgment on plaintiff's claim for reputation damages. The motions will be denied.
Because the parties seek summary judgment on certain of plaintiff's claims -- that is, because they ask the Court to find that certain of plaintiff's claims are so incontestable that judgment should be awarded to them without their having to present their case to a jury -- for purposes of this motion the evidence on all disputed points must be viewed in the light most favorable to the party that opposes summary judgment. On summary judgment, it is not the function of the Court to make factual findings or resolve disputed issues of fact. Rather, the Court's responsibility is to decide whether there are triable issues of fact that require resolution by a jury at trial. Consequently, nothing in this recitation should be taken as a factual finding, or as indicating any opinion on the part of the Court with respect to the merits of plaintiff's claims. In sketching the factual background for this motion, the Court merely indicates what the evidence would permit a jury to find, identifying significant disputes in the evidence.
I. Browne Sanders's Employment With The Knicks
Browne Sanders began her employment with MSG in November 2000 as a Vice-President of Marketing for the New York Knickerbockers ("Knicks"), a National Basketball Association ("NBA") franchise owned by MSG. (Mintzer Aff. Ex. 15.) As Vice-President of Marketing, Browne Sanders's primary responsibility was to market the Knicks' team brand. (Pl. Dep. II 246-47.) Browne Sanders was also responsible for various facets of the Knicks' media and communications programs, game presentation, and event management. (Id.) Browne Sanders was hired by Stephen Mills, who was then MSG's Executive Vice-President for Franchise Operations. (Mills Dep. 47-49.) Mills was primarily responsible for evaluating Browne Sanders and recommending her for promotions and salary adjustments. (Mills Dep. 53-57, 99.)
As a Knicks executive, Browne Sanders had access to confidential financial and business proprietary material of MSG. (Mills Aff. ¶ 7.) When she was hired, Browne Sanders signed a copy of MSG's Confidentiality, Code of Business Conduct and Proprietary Property Agreement (the "Agreement") (Pl. Dep. II 44-46), which provided that "[d]uring [her] employment, [Browne Sanders] may not engage in activities or have personal or financial interests that may impair, or appear to impair, [her] independence or judgment or otherwise conflict with [her] responsibilities to [MSG]." (Cesaratto Aff. Ex. E.) Browne Sanders also signed MSG's "Employee Code of Conduct," which stated that "[p]ublic trust and confidence are the greatest assets held by [MSG]." (Pl. Dep. II 24; Cesaratto Aff. Ex. F.)
In March 2002, Browne Sanders was promoted to Senior Vice-President, Marketing & Business Operations. (Pl. Dep. II 83-85; Mills Dep. Ex. 4.) Her responsibilities expanded to include, among other things, oversight of the marketing and business operations budget. (Mills Aff. ¶ 8; Dolan Aff. ¶ 3.) Browne Sanders remained in that position until her termination in January 2006. Her total compensation for just over five years of employment with the Knicks exceeded $1,100,000. (Moran Aff. ¶ 11.) In her new role, plaintiff continued to report to Mills, who had by then been promoted to President, MSG Sports Team Operations. (Mills Dep. Exs. 1, 4.)
Thomas was hired as President of Basketball Operations for the Knicks in December 2003. (Thomas Dep. 130.) In that position, Thomas oversaw the coachers, players, and other Knicks personnel at the MSG Training Center located in Tarrytown, New York. (Thomas Aff. ¶ 3.) In addition, Thomas had an office at MSG's headquarters in Manhattan where Browne Sanders worked. (Pl. Dep. I 213-14.) Although Thomas did not supervise Browne Sanders, Browne Sanders was responsible for keeping Thomas informed about business developments related to the team. (Pl. Dep. I 40 (stating that Browne Sanders had a "dotted line relationship" with Thomas).)
Until 2004, Browne Sanders received positive performance reviews and numerous bonuses. (Dolan Dep. Ex. 16; Mills Dep. 56; Mills Dep. Exs. 3, 6-8, 11; Mintzer Aff. Ex. 22.) Browne Sanders also had a good working relationship with Kevin Layden, the Knicks' President and General Manager until his termination in December 2003. (Pl. Dep. I 33-34, 49.) However. beginning in 2004, Browne Sanders began experiencing difficulties at work. In March 2004, Browne Sanders met with Mills and Thomas to discuss a conflict between Thomas and Browne Sanders over their respective job responsibilities. (See Pl. Dep. I 122-23; see generally Mills Dep. 189-201. See also Olsen Dep. Ex. 7 (describing the "[r]ole conflict between Anucha and [Thomas]").) Browne Sanders also began encountering conflict with other colleagues, including Frank Murphy, then-Senior Vice-President of Basketball Operations. (Pl. Dep. I 240; see Thomas Dep. Ex. 1.) In addition, in June 2005, Browne Sanders participated in a series of budget meetings with Mills, Dolan, and Hank Ratner, MSG's Vice-Chairman (Mills Dep. 124; see Dolan Dep. 73; Ratner Dep. 80-87, 92), that Mills characterized as "disastrous." (Mills Dep. 124.) Browne Sanders acknowledges that a reasonable jury could find that her job performance generally declined in 2005. (Pl. Reply 9 n.8.)
II. The Sexual Harassment Allegations
Such a jury also could conclude that the relationship between Browne Sanders and Thomas became increasingly strained during 2005. Browne Sanders accuses Thomas of engaging in unwanted sexual advances; Thomas denies some of the alleged incidents and challenges Browne Sanders's interpretation of others. For purposes of this motion, the details of the disputed incidents need not be rehearsed. The flavor of the allegations is sufficiently conveyed by two alleged episodes. In May 2005, Browne Sanders told Peter Olsen, an MSG consultant and an advisor to Thomas, that Thomas had said that he loved her and requested that she "go off site" with him. (Olsen Dep. 117.) Thomas disputes this charge. (Thomas Dep. 213-14; 257-60.) Thomas acknowledges, however, that in December 2005, at a Knicks game, he attempted to kiss Browne Sanders on the cheek; when Browne Sanders pulled away, Thomas replied, "no love today?" (Thomas Dep. 258-59.)
During 2005 as well, Browne Sanders raised questions about alleged sexual harassment of other female employees by Knicks personnel. In June 2005, Browne Sanders informed her supervisee Dan Gladstone that one of Gladstone's subordinates, Hassan Gonsalves, had been accused of making harassing and derogatory comments towards female Knicks employees and about Browne Sanders. (Gladstone Dep. 207-12; Gladstone Dep. Ex. 7; Pl. Dep. Ex. 11.) When Gladstone questioned Stephon Marbury, a Knicks player and Gonsalves's cousin, about Browne Sanders's allegations, Marbury bluntly expressed his hostility to Browne Sanders. (Marbury Dep. 28-32; Gladstone Dep. Ex. 7; Gladstone Dep. 216.) When Browne Sanders informed John Moran, MSG's Vice-President of Employee Relations, about Gonsalves's and Marbury's behavior (Moran Dep. 70-75; Pl. Dep. II 352-53, 355-57), Gonsalves was terminated (Moran Dep. 73-74), but Marbury was not questioned about Browne Sanders's allegations (id. 99, 115).
Towards the end of 2005, Browne Sanders began investigating and documenting the allegedly inappropriate conduct of Thomas and Marbury. In November 2005, Browne Sanders spoke to Karen Buchholz, a Knicks Vice-President who reported to Browne Sanders, about Buchholz's interactions with Thomas and Marbury, and requested that Buchholz send her an e-mail documenting those interactions. (Buchholz Dep. 124-33, 169-85; see Buchholz Dep. Ex. 1.) Around the same time, Browne Sanders asked Gladstone to document his account of his conversations with Marbury. (Gladstone Dep. 215-19.) In December 2005, Browne Sanders asked another Knicks employee, Gary Winkler, to send her an e-mail documenting his conversations with Petra Pope, the head of the Knicks' dance team, concerning allegations (denied by Thomas) that Thomas had made inappropriate comments to Pope in 2004. (Pl. Dep. I 176-78; Thomas Dep. 263-64; Olsen Dep. Ex. 7.) Browne Sanders also asked other members of her staff to document incidents of sexual harassment they witnessed at work. (Pl. Dep. I 333-34.)
Matters came to a head in December 2005 and January 2006. On December 2 and 4, Browne Sanders, accompanied by Buchholz, met with an attorney to discuss Browne Sanders's sexual harassment complaint. (See Buchholz Dep. 196-98.) On December 22, counsel for Browne Sanders met with counsel for MSG. (Mintzer Aff. ¶ 25; Schoenfeld Aff. ¶ 4.) At that meeting, Browne Sanders's counsel informed MSG of Browne Sanders's sexual harassment complaint. (Mintzer Aff. ¶ 25.) The attorneys agreed to "attempt to expedite a negotiated, good faith resolution of Ms. Browne Sanders' claims." (Id. ¶ 26; Mintzer Aff. Ex. 19.)
III. MSG's Internal Investigation and Browne Sanders's Termination
Shortly after the December 22 meeting, MSG assigned Moran and Rochelle Noel, an in-house attorney for Cablevision, MSG's parent company, to conduct an internal investigation into Browne Sanders's complaint. (Schoenfeld Aff. ¶ 7.) On January 6, 2006, Moran and Noel interviewed Browne Sanders as part of that investigation. (Mintzer Aff. Ex. 23.)
Thomas was interviewed by Moran and Noel on December 23, 2005, and January 11, 2006. (Moran Dep. Exs. 10, 11; Noel Dep. Exs. 2, 13, 14.) According to Moran and Noel, Thomas claimed during the interview that Browne Sanders's allegations were false, and that Browne Sanders had concocted the charges as a result of her conflict with Thomas over their respective job responsibilities. Specifically, Thomas claimed that he and Browne Sanders "butted heads" because Thomas "wanted complete control of players['] time and responsibilities," which Browne Sanders resisted, that Browne Sanders "wanted to be making decisions" for Thomas, and that Browne Sanders acted like she was Thomas's boss. (Moran Dep. 299-300, 310-12; Moran Dep. Exs. 10, 11; Noel Dep. 64-67, 94-95. 232-233; Noel Dep. Exs. 2, 13, 14.) Thomas also provided the investigators with specific examples of Browne Sanders's allegedly deficient job performance. (Moran Dep. 315-16; Moran Dep. Ex. 11.)
Simultaneously with the investigation, Browne Sanders and MSG engaged in settlement negotiations. On December 27, Browne Sanders's counsel conveyed a settlement proposal to MSG's counsel; MSG's counsel presented a counter-offer on December 30. (Mintzer Aff. ¶¶ 27-28 & Ex. 20.) Along with the offer, MSG wrote to Browne Sanders's counsel that her proposal lacked a "rational basis," but nevertheless that "MSG [was] ready, willing and able to continue as rapidly as possible [the parties'] good-faith discussions in order to find a mutually acceptable resolution." (Mintzer Aff. Ex. 20.) On January 3, 2006, Browne Sanders's counsel orally conveyed another settlement proposal to MSG's counsel. (Mintzer Aff. ¶ 29.)
On January 13, 2006, Noel and Moran finalized the findings of their investigation in an investigation summary. (Noel Dep. Ex. 14.) On January 19, 2006, Marc Schoenfeld, then-Acting General Counsel for MSG, drafted a memorandum on behalf of Rusty McCormack, MSG's Senior Vice-President of Human Resources, making recommendations to MSG based on the findings in the investigation summary (the "McCormack Memo" or "Memo"). (Franco Aff. Ex. G.) The McCormack Memo recommended that Thomas receive "sensit[ivity]" training, in light of the finding that Thomas "occasion[ally] used profanity and . . . raised his voice in the workplace," and to address "one occasion" on which Thomas "greeted Browne Sanders with a hug and kiss." (Id.) The McCormack Memo also recommended that Mills meet with Cablevision's human resources officers to discuss what "lessons, if any, may be learned from the" investigation. (Id.)
However, the Memo found that "most of Browne Sanders' allegations were not confirmed," and stated that Browne Sanders had exhibited a "poor relationship and difficulty interacting with Mills and other members of MSG management," and that Browne Sanders and Thomas had a "number of business disagreements in philosophy and management style." (Id.) "[I]n light of . . . issues related to . . . Browne Sanders' communication skills and overall effectiveness," the Memo recommended that Browne Sanders's employment should be terminated. (Id.) On January 19, 2006, Browne Sanders was dismissed from her employment with the Knicks. (Mintzer Aff. ¶ 30.) The decision to fire Browne Sanders was made by Dolan, MSG's Chairman. (Dolan Dep. 85, 87 ("[A]ll decisions at the Garden I make on my own.").)
Defendants have asserted two seemingly inconsistent reasons for Browne Sanders's termination. First, defendants represented to the Equal Employment Opportunity Commission ("EEOC") that Browne Sanders was terminated because she "lacked the interpersonal skills to perform her job effectively, and refused to follow [MSG's] directions." (Mintzer-Thomas Aff. Ex. 7, at 2.) Specifically, Dolan testified that he started to believe that Browne Sanders did not have the skills to perform her job as early as the summer of 2005, when she failed to perform adequately at budget meetings. (Dolan Dep. 61, 64, 186.) Dolan also testified that he had been advised of Browne Sanders's alleged deficiencies by other Knicks executives, including Mills and Ratner, prior to the time that she made her harassment complaint. (Dolan Dep. 48, 188; see Ratner Dep. 80, 83-87, 93, 105, 110; Mills Dep. 369-70.)
However, aspects of Dolan's testimony could be found to contradict defendants' representation to the EEOC that Browne Sanders was terminated due to her deficient work performance. Dolan repeatedly testified that, although Browne Sanders's work performance was deficient, he would not have terminated Browne Sanders but for a concern entirely separate from her general work performance: her conduct during MSG's internal investigation of her sexual harassment complaint. (Dolan Dep. 190, 192, 200-02.) Specifically, Dolan stated that Browne Sanders "could have continued on doing her job" if she had not gone "off through the company attempting to garner support for [her] complaint," and if she had not attempted to extort MSG with an unreasonable settlement demand. (Id. 192. See id. 179 (describing Browne Sanders's settlement demand as an extortionate "threat").) Indeed, Dolan appeared directly to deny that his decision to fire Browne Sanders was based on the performance issues cited in the McCormack Memo and presented to the EEOC as the reason for her firing. (Id. 64 ("I did not agree that she should be fired [due to her deficient work performance].").) According to Dolan, Browne Sanders's alleged "tamper[ing]" with the investigation and abuse of her authority during that investigation, as reflected by the findings of the investigation summary and McCormack Memo, was the "last straw" that led to her termination. (Id. 77, 178, 190. See id. 202 ("[W]e had no way of knowing whether [plaintiff] was going to continue to [violate company policy] or not continue to do that, and so how could I then have her continue to run that operation. . . . [T]hat is why she was let go.") (emphasis added).)*fn1
IV. The Current Litigation
On January 24, 2006, Browne Sanders filed the complaint that initiated the present action, alleging that she was discriminated against on the basis of her sex and terminated in retaliation for her sexual harassment complaint in violation of federal, state, and city law. (Am. Compl. ¶¶ 54-85.) That same day, defense counsel issued press statements on behalf of their clients. MSG's and Dolan's counsel stated that Browne Sanders's claim was "baseless" (Watkins Dep. 45), and that Browne Sanders was terminated due to her deficient work performance. (Id. 143-45.) Thomas's counsel stated that Browne Sanders's claims were "a blatant attempt . . . to get a large some of money from [MSG] by taking advantage of [Thomas's] celebrity status." (Mintzer-Thomas Aff. Ex. 4.)
Browne Sanders responded in a statement denying defendants' accusations, which she read at a press conference on January 25, 2006. (Cesaratto Aff. Ex. G.) That same day, Thomas held a press conference in which he again denied Browne Sanders's claims and asserted that Browne Sanders was trying to use him as a "pawn" for her "financial gain." (Thomas Aff. ¶ 7.) Two days later, Thomas held another press conference in which he again denied Browne Sanders's claims. (Id.)
During discovery, MSG sought and obtained (over Browne Sanders's objection) copies of Browne Sanders's federal, New York, and New Jersey tax returns for 2000-2005. (Cesaratto Aff. Ex. N.) The 2001-2004 returns originally produced to MSG included Schedule C deductions for the expenses of a "direct marketing" business, totaling approximately $73,000. (Cesaratto Aff. Exs. P(PL4302), Q(4321), R(PL4353), S(PL4388).) However, Browne Sanders shortly thereafter produced amended federal and state tax returns for 2003 and 2004. (Cesaratto Aff. Ex. O.) The 2003 and 2004 tax returns had been amended the day after Browne Sanders's initial production to remove the Schedule C deductions. (Cesaratto Aff. Exs. W-X.) The amendment resulted in the elimination of approximately $20,000 of business deductions for 2003 and 2004. (Reimer Dep. 36-37.) Although the 2001 and 2002 tax returns included identical deductions (Cesaratto Aff. Exs. P(PL4302), Q(4321)), they were not similarly amended.
Browne Sanders denies that she ever operated a "direct marketing" business, but claims that the Schedule C deductions were due to accountant error and not a deliberate attempt to commit tax fraud. (Pl. Dep. II 43-44; Halstead Dep. 44-46, 48, 50-51, 64-65, 72.) Browne Sanders asserts that she did not amend her 2001 and 2002 tax returns on the advice of her current accountant, who informed her that there is a "three year statute of limitations" for amending tax returns. (Reimer Dep. 67; see Reimer Aff. ¶ 19.)
Since her termination, Browne Sanders claims that she has applied for jobs with "many potential employers" in a "wide variety of businesses." (Pl. Aff. ¶¶ 3-4.) At the time the motions were filed, Browne Sanders was working as an independent contractor for a non-profit organization. (Id.) Her annual compensation was less than half of what she earned at MSG. (Id.)*fn2 According to Browne Sanders, since her termination, she has been repeatedly questioned about the circumstances of her dismissal from MSG by prospective employers and recruiters, some of whom have referred to her dismissal from MSG as a reason for her rejection from employment. (Id.) As a result of her alleged injury, Browne Sanders seeks to recover approximately $600,000 in back pay, $9,762,000 in front pay and reputation damages through age 65, an unspecified amount for lost pension payments and stock options, and reinstatement.*fn3
Plaintiff alleges that defendants engaged in unlawful conduct by discriminating against her on the basis of her sex, subjecting her to sexual harassment, and retaliating against her for her sexual harassment charge. None of the parties move for judgment as a matter of law on plaintiff's sex discrimination or sexual harassment claims. Thus, the merits of those claims will be determined by a jury at trial, and the Court will not discuss their merits except to the extent that a discussion of the underlying claims is necessary to determination of the pending motions.
However, both plaintiff and defendants argue that they are entitled to judgment as a matter of law on certain of plaintiff's other claims. Specifically, plaintiff argues that she is entitled to judgment on her retaliation claim, while defendant Thomas argues that he is entitled to judgment on that same claim insofar as it is asserted against him. In addition, all three defendants allege that certain of plaintiff's claims for damages are barred as a matter of law.
Thus, the pending motions require the Court to consider the evidence bearing on plaintiff's retaliation and damages claims. However, as stated above, such consideration of the merits does not constitute fact-finding by the Court. Instead, the following discussion only identifies significant factual disputes which preclude the granting of judgment as a matter of law. The Court's responsibility at this juncture is only to identify the factual disputes contained in the record; it will be the jury's responsibility to resolve those disputes at trial.
I. Summary Judgment Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court's responsibility is to determine if there is a genuine issue to be tried, and not to resolve disputed issues of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must draw all reasonable inferences and resolve all ambiguities in the nonmoving party's favor, and construe the facts in the light most favorable to the nonmoving ...