Van Brunt-Piehler v. Absolute Software, Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MARY VAN BRUNT-PIEHLER,

DECISION AND ORDER

Plaintiff,

v. 6:16-CV-06313 EAW

ABSOLUTE SOFTWARE, INC.,

ABSOLUTE SOFTWARE CORPORATION,

GEOFF HAYDON, THOMAS KENNY,

and TODD AWTRY,

Defendants.

Plaintiff Mary Van Brunt-Piehler (“Plaintiff”) sued defendants Absolute Software,

Inc. and Absolute Software Corporation (collectively “Absolute”), along with Geoff

Haydon, Thomas Kenny, and Todd Awtry, for discrimination and retaliation arising from

her employment with Absolute. (Dkt. 1; Dkt. 34). On March 6, 2023, the case proceeded

to a jury trial on these causes of action: gender discrimination in violation of Title VII of

the 1964 Civil Rights Act (“Title VII”), as amended, 42 U.S.C. § 2000e et seq.; gender

discrimination in violation of the New York State Human Rights Law (“NYSHRL”),

New York Executive Law § 290, et seq.; violation of the Equal Pay Act (“EPA”), 29

U.S.C. § 206, et seq.; and retaliation in violation of the NYSHRL. (See Dkt. 350; Dkt.

369). On March 16, 2023, the jury found in Defendants’ favor on all causes of action,

except with respect to Plaintiff’s NYSHRL retaliation claim, for which the jury awarded

Plaintiff $75,000 in compensatory damages. (Dkt. 369).

Pending before the Court are the parties’ post-trial motions, including Defendants’

motion for judgment as a matter of law (Dkt. 381) and Plaintiff’s motion for a new trial

(Dkt. 384). For the reasons explained below, Defendants’ motion is granted, Plaintiff’s

motion is denied, and the jury’s verdict on the NYSHRL retaliation claim is vacated.

Alternatively, even if the retaliation verdict were not vacated in its entirety, the Court

would vacate it as much as it was based on the termination of Plaintiff’s employment as

the adverse action, and accordingly proceeding to the economic damages phase of the

trial would be unnecessary and the case would be closed.

BACKGROUND

Familiarity with the history of this case—including particularly the Court’s

Decision and Order entered on November 30, 2020 (Dkt. 179), and the evidence adduced

at trial—is assumed for purposes of this Decision and Order. The Court has summarized

the salient procedural background below.

Plaintiff commenced the instant action on May 18, 2016. (Dkt. 1). Following

discovery and motion practice, the claims that remained for purposes of trial were gender

discrimination in violation of Title VII; gender discrimination in violation of the

NYSHRL; violation of the EPA; and retaliation in violation of the NYSHRL. (Dkt. 369).

Prior to trial, the parties stipulated that Plaintiff’s claims for economic damages relating

to any back pay and front pay were to be bifurcated and decided by the Court post-trial, if

necessary. (Dkt. 237).

Trial commenced on March 6, 2023, and continued for about eight days. (Dkt.

350; Dkt. 357; Dkt. 358; Dkt. 361; Dkt. 362; Dkt. 364; Dkt. 365; Dkt. 367). Both at the

close of Plaintiff’s case and before the claims proceeded to the jury, Defendants moved

for judgment as a matter of law, including with respect to Plaintiff’s retaliation claim.

(Dkt. 361; Dkt. 365). The Court expressed some misgivings about the proof at trial with

respect to the retaliation claim, but reserved decision on the motion. (See, e.g., Dkt. 363

at 57-63).

The jury found in Plaintiff’s favor only on the retaliation claim. (Dkt. 369). The

jury also found that Plaintiff failed to establish her claims for individual liability against

defendants Haydon, Kenny, and Awtry. (Id.).

Following entry of the judgment, on April 14, 2023, Defendants filed their motion

for judgment as a matter of law (Dkt. 381), and Plaintiff filed her motion for a new trial

(Dkt. 384). Responses to these motions were filed on May 12, 2023 (Dkt. 394; Dkt. 395;

Dkt. 396; Dkt. 397), and replies were filed on May 26, 2023 (Dkt. 400; Dkt. 401). The

Court held oral argument on February 16, 2024. (Dkt. 414; Dkt. 416). The Court

reserved decision pending the receipt of supplemental submissions on two issues:

(1) whether the Court may grant a new trial on Plaintiff’s retaliation claim even though

Defendants did not seek such relief; and (2) although the jury’s verdict on retaliation did

not specify the alleged adverse action(s) on which it was based, may the Court evaluate,

on the existing trial record, whether there is a causal link between the alleged protected

activity and the termination of Plaintiff’s employment. (Dkt. 416). The Court received

the parties’ supplemental briefing on March 1, 2024. (Dkt. 418; Dkt. 419).

DISCUSSION

Reluctant to interfere with a verdict reached by a jury, the Court is nonetheless

obligated to set aside a verdict where there is a complete absence of evidence. This is

such a case. No rational jury could conclude that Plaintiff engaged in protected

activity—in other words, that Plaintiff voiced complaints of gender discrimination to her

employer. There is no question that Plaintiff voiced complaints that she was being

treated unfairly—but no reasonable person would have construed those complaints as

based on gender. Without any evidence of protected activity, the verdict for Plaintiff on

her retaliation claim cannot stand. Alternatively, even if that conclusion were incorrect,

there is no possible way that a reasonable jury could have concluded that the purported

protected activity was linked in any way—let alone the but-for cause of—the termination

of Plaintiff’s employment. As a result, for the reasons explained below, the Court grants

Defendants’ motion for judgment as a matter of law. (Dkt. 381).

Before discussing Defendants’ motion, the Court first turns to Plaintiff’s motion

for a new trial. Plaintiff’s motion raises arguments that at times border on frivolous, with

Plaintiff largely seeking to relitigate certain evidentiary rulings that were resolved prior to

trial. For the reasons discussed below, Plaintiff’s motion for a new trial is denied. (Dkt.

384).

I. Plaintiff’s Motion for a New Trial1

Plaintiff seeks a new trial on her gender discrimination claims pursuant to Rule

59(a).2 Rule 59(a) of the Federal Rules of Civil Procedure provides that “[t]he court may,

on motion, grant a new trial on all or some of the issues—and to any party— . . . after a

jury trial, for any reason for which a new trial has heretofore been granted in an action at

law in federal court. . . .” See Fed. R. Civ. P. 59(a)(1)(A).

“As a general matter, a motion for a new trial should be granted when, in the

opinion of the district court, the jury has reached a seriously erroneous result or the

verdict is a miscarriage of justice.” DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d

124, 133 (2d Cir. 1998) (quotation and alterations omitted); see also Farrior v. Waterford

Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002) (“[A] decision is against the weight of the

evidence, for purposes of a Rule 59 motion, if and only if the verdict is seriously

erroneous or a miscarriage of justice[.]”). “Rule 59(a) . . . has a less stringent standard

than Rule 50 in two significant respects: (1) a new trial under Rule 59(a) may be granted

1 In connection with their supplemental briefing, the parties also addressed whether

it would be appropriate for the Court to grant a new trial in favor of a party that did not

seek that relief (i.e., a new trial in favor of Defendants on Plaintiff’s retaliation claim).

(Dkt. 418; Dkt. 419). Plaintiff concluded that the Court could grant a new trial in favor

of Defendants even though Defendants did not move for such relief, but Defendants

argued that it would be improper. Both parties have cited authority in support of their

respective positions, but neither party has cited Second Circuit authority definitively

ruling on the issue, nor has the Court located any. In any event, the Court need not

resolve the issue because it has concluded that Defendants are entitled to judgment as a

matter of law on Plaintiff’s retaliation claim. Therefore holding a new trial on the

retaliation claim is unnecessary.

2 Plaintiff moves for a new trial “as to her gender discrimination claims.” (Dkt. 386

at 6). However, Plaintiff does not reference the specific claims or Defendants she seeks

to retry.

even if there is substantial evidence supporting the jury’s verdict, and (2) a trial judge is

free to weigh the evidence [her]self, and need not view it in the light most favorable to

the verdict winner.” Manley v. AmBase Corp., 337 F.3d 237, 244-45 (2d Cir. 2003)

(quotations and citation omitted). “The legal standard for granting a new trial under Rule

59(a) calls for deference to jury determinations while affording discretion to the trial

judge to order a new trial in the event of manifest injustice.” Top Ridge Invs., LLC v.

Anichini, Inc., No. 5:16-CV-76, 2018 WL 11419657, at *1 (D. Vt. May 7, 2018).

Whether to grant a new trial under Rule 59(a) is entrusted to the Court’s discretion. See

Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 261 (2d Cir. 2002) (“This court

reviews the grant of a new trial on the ground that the verdict was against the weight of

the evidence for abuse of discretion.”).

As relevant here, “a motion for a new trial based on the erroneous admission of

evidence is warranted only where the court made substantial errors in admitting the

evidence. . . . Such relief is not to be granted unless the court finds that the introduction

of such evidence ‘was a clear abuse of discretion and was so clearly prejudicial to the

outcome of the trial that we are convinced that the jury has reached a seriously erroneous

result or that the verdict is a miscarriage of justice.’” Ojeda v. Metro. Trans. Auth., 477

F. Supp. 3d 65, 77 (S.D.N.Y. 2020) (emphasis in original) (quoting Nimely v. City of New

York, 414 F.3d 381, 399 (2d Cir. 2005)), aff’d, 41 F.4th 56 (2d Cir. 2022). Further, “[i]t

is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting the case

under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite

at the apple.’” Sequa Corp v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998).

In support of her motion for a new trial, Plaintiff advances ten arguments: (1) the

Court’s pre-trial ruling precluding live testimony from Lyle Singular was erroneous (Dkt.

386 at 7-14); (2) the Court erred when it admitted demographic data and charts offered by

Defendants, and when it permitted defense witness Corey Booker to testify to this

evidence at trial (id. at 14-16); (3) the Court erred in not admitting the complete and

unredacted anonymous survey evidence (id. at 16-18); (4) the Court erred by excluding

the survey conducted by Awtry as to Plaintiff (id. at 18-20); (5) the Court erred by not

admitting Amy Rathbun’s resignation letter (id. at 20-21); (6) the Court erred in

excluding emails and comments by Art Robinson (id. at 21-23); (7) the Court improperly

allowed testimony that Rathbun was the recipient of a bullying complaint (id. at 23-24);

(8) the Court erred when it excluded the complaint from another matter, Lubahn v.

Absolute Software (id. at 24-25); (9) the Court erred in imposing a different burden on

Plaintiff as to unpaid commissions, as opposed to the burden placed on Defendants (id. at

25); and (10) the Court’s permitting Defendants to offer new and different reasons for

Plaintiff’s termination at trial was highly prejudicial and warrants a new trial (id. at 25-

26). As discussed below, none of these arguments merit the granting of a new trial, but

even viewed in their totality, the points pressed by Plaintiff do not come close to meeting

her burden.

A. Singular’s Live Testimony

Plaintiff’s first argument in support of her motion for a new trial is a re-hashing of

previous arguments she made in support of her motion to offer Singular—who was never

identified as a witness in Plaintiff’s Rule 26 disclosures—as a live trial witness (see Dkt.

322-1; Dkt. 386 at 7-14), which the Court denied before trial (see Dkt. 337 (March 1,

2023 Bench Statement)). Plaintiff’s argument is therefore improper on its face, since

Rule 59 is not a vehicle for re-litigating old issues.

Singular’s deposition testimony was taken in connection with the aforementioned

Lubahn matter and focused on his knowledge of age discrimination allegedly occurring at

Absolute. Plaintiff peculiarly spends a significant portion of her brief focused on this

argument even though she agreed it was a moot issue when she abandoned her age

discrimination claims prior to trial. (See Dkt. 389 at 3-4 (discussing Plaintiff’s

withdrawal of her age discrimination claims, raising Singular’s deposition testimony, and

Plaintiff agreeing that Singular’s testimony would not be relevant)). Given that Plaintiff

voluntarily discontinued her age discrimination claims before trial, it strains the bounds

of reasonable advocacy to suggest that Singular’s live trial testimony would have any

bearing at a new trial.

While conceding that the Court applied the correct legal standard under Patterson

v. Balsamico, 440 F.3d 104 (2d Cir. 2006) (see Dkt. 386 at 8), Plaintiff argues that the

Court failed to explain why it excluded Singular’s testimony at trial “despite the . . .

earlier finding that Mr. Singular had relevant testimony and that portions of his

deposition testimony would be permitted at trial.” (Id. at 7; see also id. at 8). By way of

background, Plaintiff did not initially seek to offer Singular as a live witness at trial.

Rather, Plaintiff consistently sought to offer only Singular’s deposition testimony. (See,

e.g., Dkt. 243 at 8-9; Dkt. 232 at 5). It was only after issues emerged with respect to the

timing of Singular’s testimony did Plaintiff seek to call him as a live witness, despite that

he had not been identified in any of Plaintiff’s Rule 26 disclosures. This occurred in late

January 2023—after the trial had already been postponed two times, and about one month

before the rescheduled trial was set to begin.

Contrary to Plaintiff’s suggestion, the Court did explain why it declined to permit

Singular to testify as a live witness at trial—because allowing limited, truncated portions

of Singular’s deposition transcript at trial against Absolute only3, was different than

permitting Singular to testify live at trial, where Plaintiff could elicit a host of testimony

far beyond what was included in the deposition transcript. (See Dkt. 337 at 4). In other

words, the Court was inclined to permit Plaintiff to offer the deposition testimony

because there would be no disputes over the testimony, and the parties would be on equal

footing.

As to the Patterson factors, Plaintiff has identified no error by the Court requiring

a new trial.4 Plaintiff still offers no valid explanation as to why she failed to include

Singular on her Rule 26 disclosures, or her failure to supplement the same. Rather,

Plaintiff tries to shift the blame to Defendants, contending that they failed to disclose the

3 The Court ruled that, because the individual defendants were not parties to the

Lubahn litigation, Singular’s deposition testimony could not be admitted against them.

Rather, the testimony could be admitted with respect to the corporate defendants only.

(See Dkt. 306 at 25-26).

4 As the Court explained in the Bench Statement, in assessing whether to exclude

witness testimony under Rule 37, the Patterson factors require the Court to consider “(1)

the party’s explanation for the failure to comply with the disclosure requirement; (2) the

importance of the testimony of the precluded witnesses; (3) the prejudice suffered by the

opposing party as a result of having to prepare to meet the new testimony; and (4) the

possibility of a continuance.” Patterson, 440 F.3d at 117 (alterations and citation

omitted).

existence of Singular and the Lubahn matter “until Plaintiff pressed the issue.” (Dkt. 386

at 8-9). But as the Court previously found, Plaintiff admitted during a pretrial conference

that she was responsible for failing to designate Singular as a witness, referring to her

failure to do so as an “oversight.” (See Dkt. 253 at 50 (responding to the Court’s inquiry

about why initial disclosures were not amended to include Mr. Singular’s identity, and

stating, “I guess, you know, there is always the could have, should of”)). The fact of the

matter is, Plaintiff had ample time after learning of Singular’s testimony to supplement

her Rule 26 disclosures to name him as a witness, but she failed to do so.

In addition, Plaintiff has failed to show any error in the Court’s determination as to

the importance of Singular’s testimony. In its Bench Statement resolving this issue, the

Court concluded that Singular’s testimony about Olsen’s statements about the age of

Absolute’s workforce was relevant to Plaintiff’s age-related claims, but given that

Singular did not work in Plaintiff’s department and had no evidence directly relating to

Plaintiff, the Court could hardly characterize the testimony as “important.” (Dkt. 337 at

6). Other than to argue that a witness’s testimony does not become more or less

important based on whether the party chooses to present his testimony live or by

deposition transcript, Plaintiff offers no substantive argument as to why Singular’s

testimony is otherwise important—a factor underscored by the fact that Plaintiff

voluntarily discontinued her age discrimination claims before trial.

Plaintiff has also demonstrated no error in the Court’s conclusion on the last two

factors. As to prejudice, Plaintiff has demonstrated no error in the Court’s determination

that Defendants would be prejudiced by Singular’s live testimony. Offering Singular as

a live witness would create prejudice because defense counsel conducted no discovery on

him, nor did they have a chance to question Olsen as to Singular’s statements—but

offering only his deposition testimony gave both sides notice of the content of his

testimony.

Finally, as the Court explained in the Bench Statement, Plaintiff filed her

complaint in May 2016. The trial was originally set to commence in August 2021, and

was previously adjourned two times. At the time Plaintiff sought to introduce Singular’s

live testimony, the trial was impending, and the Court was not inclined to continue the

matter for a third time. See Yin v. Alvarado, No 1:11-CV-00780 EAW, 2016 WL

5115357, at *3 (W.D.N.Y. Sept. 20, 2016) (“At this late stage in the litigation—less than

two weeks before trial—granting a continuance would prejudice Defendant because it

would waste the resources, time, and effort he spent in preparing for the instant trial.”).

Plaintiff offers no meaningful argument as to why the Court’s conclusion in this respect

was error. A continuance so that Plaintiff could depose Singular and Defendants could

conduct further discovery would have been impractical. Accordingly, the Court denies

Plaintiff’s motion for a new trial on this basis.

B. Admission of Demographic Data and Charts

Plaintiff next argues that she is entitled to a new trial because the Court should not

have allowed the jury to consider the overall demographics of Absolute’s workforce,

since the demographics were not “tied to the relevant statistical cohort” of “customer

facing sales reps,” referencing employee rosters and spreadsheets admitted into evidence

at Exhibits 628 through 635. (Dkt. 386 at 14-16). Plaintiff contends that the employee

rosters were “not based on the proper cohort of employees that were subject to Mr.

Haydon’s directive to hire male jocks that would get in each others’ faces and talk trash.”

(Id. at 14). Plaintiff also challenges the accuracy of the underlying spreadsheet data,

including because during the trial witness Cory Booker could not explain why employee

Joe Morini and Plaintiff were listed on a particular July 2015 spreadsheet. (Id. at 15).

Plaintiff’s objection about the tie to the “relevant statistical cohort” lacks merit

because that objection goes to the weight of the evidence, rather than to its admissibility.

See, e.g., GeigTech E. Bay LLC v. Lutron Electronics Co., No. 18 Civ. 05290 (CM), 2023

WL 6614486, at *41 (S.D.N.Y. Sept. 20, 2023) (“Courts in this circuit have consistently

allowed the testimony of experts relying on internal company data, on the ground that

any issues with the underlying data goes only to the weight that should be afforded their

testimony but not its reliability.”). Indeed, Plaintiff had the opportunity to argue to the

jury—and in fact did argue to the jury—the reasons why the demographic data should be

given little weight. (See Dkt. 377 at 92-93 (Plaintiff’s closing argument that “the

problem is that demographic information includes all employees in the sales function,

including administrative assistants and all sorts of people who are not doing outside—or

sales work. . . . So the statistics they put up there don’t show what they were talking

about.”)).

In connection with this argument, Plaintiff contends that the Court improperly

allowed Booker to testify as an undisclosed fact witness. At trial, Plaintiff did not object

to Booker testifying as a records custodian under Fed. R. Evid. 803(6), but she now

argues that Booker’s testimony on the employee demographic data exceeded the scope of

his knowledge. (See Dkt. 386 at 16 (arguing that Booker’s testimony was “pure

speculation as to the reasons that Mr. Morini would be listed on the employee

spreadsheets on July 1, 2015 despite the fact that Absolute’s own records contradicted

that start date.”)).

Contrary to what Plaintiff’s argument suggests, Defendants properly limited their

direct questioning of Booker to the introduction of the rosters and charts. It was Plaintiff

who introduced the employee spreadsheets and asked Booker questions on cross-

examination regarding the content of the spreadsheets, including why Morini was listed

as a supervisor.5 (See Dkt. 363 at 95-96, 117-18). Given that Plaintiff herself offered this

evidence at trial, she has waived any objection to its admission into evidence.

Finally, even if Plaintiff had not waived any such objection, she has failed to

explain why the admission of company demographics would require a new trial. See, e.g,

Ojeda, 477 F. Supp. 3d at 77; see also McCarter & Eng., LLP v. Jarrow Formulas, Inc.,

No. 3:19-cv-01124 (MPS), ___ F. Supp. 3d ____, 2024 WL 489328, at *18 (D. Conn.

Feb 8, 2024) (“when a party seeks a new trial because the court admitted evidence that

the party never objected to, a new trial is warranted . . . only if its admission is plain

error, meaning that the error must seriously affect the fairness, integrity, or public

reputation of judicial proceedings” (citation omitted)). For those reasons, Plaintiff’s

motion for a new trial on this basis is denied.

5 The employee roster correctly reflected that Morini was not an employee at

Absolute on July 1, 2015. (See Exhibit 630; see also Dkt. 363 at 19).

C. Survey Evidence

1. Anonymous Employee Survey

Plaintiff’s next argument involves the admission of Exhibit 67, an anonymous

employee comments survey completed by Absolute employees. Plaintiff contends that

the Court erred by not admitting the complete and unredacted survey—rather, the Court

limited the admission of the survey to “only seven unredacted comments”—and she is

entitled to a new trial because of this error. (Dkt. 386 at 16-18). Plaintiff argues that the

complete employee survey fit into several exceptions to the rule against hearsay and

therefore should have been admitted. (Id. at 17-18).

The Court first notes that Plaintiff herself sought to admit only portions of the

employee survey. (See Dkt. 240 at 46 (at July 26, 2021 conference, Plaintiff’s counsel

stating that he had “no problem, I have no issue with redacting it to, you know, the

comments that are relevant to the case, to the pretext and to the discrimination. . . . I’m

glad to take the other stuff out.”)). Having obtained an unfavorable verdict on many of

her discrimination claims, Plaintiff now changes course and asserts that the entire

employee survey should have been admitted at trial. Further, in advancing this argument,

Plaintiff has failed to identify which excluded portions of the survey she believes entitle

her to a new trial.6 Her failure to do so is no surprise because many comments made in

6 In her reply papers, Plaintiff states that she seeks to admit the remaining 81

employee survey comments that she submitted to the Court following the July 26, 2021

conference. (See Dkt. 401 at 10). Plaintiff does not discuss these comments with any

level of specificity, and therefore she has fallen far short of demonstrating her entitlement

to a new trial, i.e., making any showing as to why the exclusion of these particular

comments amounted to a miscarriage of justice.

connection with the survey—while not reflecting favorably on management at

Absolute—are not relevant to the issue of discrimination and therefore offer minimal

support for Plaintiff’s claims, as discussed below.

In addition, the caselaw addressing anonymous surveys largely conclude that such

documents are hearsay, a fact Plaintiff appears to ignore. “Courts have often excluded

anonymous or voluntary surveys as irrelevant and unreliable.” Schreiber v. Fed. Express

Corp., No. 09-CV-128-JHP-PJC, 2010 WL 1078463, at *3 (N.D. Okla. Mar. 18, 2010);

see also Lenius v. Deere & Co., No. C12-2063, C12-2072, 2015 WL 3505747, at *12

(N.D. Iowa Feb. 13, 2015) (addressing 2003 and 2005 surveys completed by Deere

employees seeking feedback on the organization, and concluding that “[b]ecause the

survey consists of anonymous responses, it is inadmissible hearsay”); Schreiber, 2010

WL 1078463, at *3 (anonymous surveys submitted to employees regarding the

performance of supervisors and managers “are irrelevant and unreliable as there is no

way to identify who submitted the information and allow the Defendant a chance to cross

examine those persons regarding their opinions.”); Olle v. Columbia Univ., No. 02 Civ.

8552(RWS), 2004 WL 2580684, at *3 (S.D.N.Y. Nov. 15, 2004) (anonymous responses

to survey were “inadmissible and irrelevant”).

As to the various hearsay exceptions listed by Plaintiff, none of them apply here.7

Plaintiff contends that the anonymous survey is an admission by a party opponent under

7 In support of her argument that a hearsay exception applies and the entire survey is

admissible, Plaintiff cites Schering Corp. v. Pfizer Inc., 189 F.3d 218 (2d Cir. 1999).

(See Dkt. 386 at 18). In that case, the Second Circuit clarified the circumstances under

which surveys may be admitted into evidence over a hearsay objection. In Schering, the

Rule 801(d)(2). (Dkt. 386 at 17). Plaintiff further argues that the anonymous survey

could be admitted under Rule 803(1) as a present sense impression, under Rule 803(3) as

reflecting Defendants’ then-existing state of mind, and as a business record under Rule

803(6). (Id. at 18). As to Plaintiff’s argument that the anonymous survey responses

qualify as admissions of a party opponent under Rule 801(d)(2), the survey company—

not Absolute employees—wrote the statements in the survey responses and paraphrased

the employee comments. Plaintiff has not even tried to establish an agency relationship

between Absolute and the survey company. Accordingly, the anonymous survey

responses are not admissions by Absolute. See also United States v. Holmes, No. 5:18-

cr-00258-EJD-1, 2021 WL 2044470, at *57 (N.D. Cal. May 22, 2021) (“The Government

does not cite, and this Court is unaware of, any case supporting the admission of the

statements of hundreds of employees to a corporate CEO under Rule 801(d)(2)(D).”).

As to Plaintiff’s assertion that the anonymous employee surveys are present sense

impressions under Rule 803(1), that Rule requires a showing of “a statement describing

or explaining an event or condition, made while or immediately after the declarant

plaintiff offered surveys to support that defendants’ representatives were engaging in

widespread false promotional activity in violation of the Lanham Trademark Act, 15

U.S.C. § 1051 et seq. (1994). 189 F.3d at 221. The cases citing Schering are mainly

comprised of intellectual property or advertising cases, with the majority involving

trademarks, where surveys showing confusion between trademarks are often admissible.

See, e.g., Friesland Brands, B.V. v. Vietnam Nat’l Milk Co., 221 F. Supp. 2d 457, 459

(S.D.N.Y. 2002) (“Survey evidence is often offered by plaintiffs in trademark cases to

show likelihood of confusion.”); see also Ortho Pharm. Corp. v. Cosprophar, Inc., 828 F.

Supp. 1114, 1122 (S.D.N.Y. 1993) (“Indeed, in trademark and Lanham Act cases,

properly conducted surveys are a valuable tool in gauging consumer perception and are

accordingly given great weight.”), aff’d, 32 F.3d 690 (2d Cir. 1994). The Court does not

find that the reasoning employed in these intellectual property cases applies in this

instance.

perceived it.” See Fed. R. Evid. 803(1). Plaintiff has made no showing that the

statements in the surveys were made “while or immediately after the [anonymous]

declarant perceived it,” or whether (more likely) the declarants recounted memories of

past events they had previously perceived. Similarly, as to Rule 803(3), which governs

the requirements for a then-existing state of mind, that Rule requires the offering party to

demonstrate “the declarant’s then-existing state of mind (such as motive, intent, or

plan).” Fed. R. Civ. P. 803(3). Plaintiff states that the “survey reflected the defendants’

then-existing state of mind because the defendants used it to inform their knowledge of

‘what the main issues are in the company,’ ‘understand[] of the level of engagement

within the company,’ and to rectify the major issues raised in the survey.” (Dkt. 386 at

18). However, Plaintiff has failed to establish that the anonymous survey responses

reflect an existing motive, intent, or plan, versus facts recalled or believed, which are

excluded from the exception. See Fed. R. Evid. 803(3) (providing that the rule does not

apply to “a statement of memory or belief to prove the fact remembered or believed

unless it relates to the validity or terms of the declarant’s will”). Indeed, surveys are

often admitted in cases involving trademark infringement because they are asking the

individual completing the survey to indicate their real-time impressions of various

trademarks—but Plaintiff has made no such showing with respect to the surveys here.

Likewise, Plaintiff never tried to show that the anonymous employee surveys qualified as

business records under Rule 803(6), including that they were kept in the regular course of

business and that making the record was a regular practice of that activity.8

8 Plaintiff also contends that the survey falls into the residual hearsay exception in

Finally, the Court also based its pre-trial decision about many of the anonymous

survey comments on Rule 403. (See, e.g., Dkt. 243 at 18 (“I’ve gone through what the

Plaintiff is proposing to introduce and, with one exception . . . nothing relates directly to

discrimination. There is one comment in here that specifically addresses a lack of

diversity throughout the company, and I’m just not finding this particularly probative,

especially in view of 403 concerns,” including the anonymous nature of the survey and

the paraphrased comments); Dkt. 321 at 17 (“I’m not going to rule in advance that the

surveys are permissible. As you’ll recall, I previously ruled on August 4, 2021 with

respect to the Defendant’s motion in limine filed at docket 189 that preliminarily I did not

find the survey admissible because it was not probative of discriminatory acts against the

Defendant, especially when balanced against Rule 403 concerns. Because of that, I did

not resolve the hearsay objections.”)). Notably, Plaintiff has failed to specifically address

the applicability of Rule 403 in her motion papers, focusing instead of the various

hearsay arguments addressed above. For those reasons, the Court did not err by

excluding the entirety of the anonymous surveys at trial and the evidentiary rulings in that

regard do not warrant a new trial.

Rule 807. (See Dkt. 386 at 18). To admit hearsay evidence under the residual hearsay

exception, a court must find that (1) the statement is supported by sufficient guarantees of

trustworthiness, after considering the totality of the circumstances under which it was

made and evidence corroborating the statement, and (2) it is more probative on the point

for which it is offered than any other evidence that the proponent can obtain through

reasonable efforts. Fed. R. Evid. 807(a). Plaintiff argues that Defendants admitted they

thought the survey results were reliable and accurate, and that many of the responses

were consistent; however, she makes no further showing as to these two requirements.

2. Awtry’s Survey of Plaintiff

Plaintiff argues that the Court erred by excluding from evidence the survey

conducted by Awtry on Plaintiff (Exhibit 1056), which concerned how Plaintiff’s

subordinates viewed her performance of her job duties. (Dkt. 386 at 18-20). Plaintiff

argues that the Court erred in excluding this survey for “substantially the same reasons

discussed above as to the Anonymous Survey.” (Id. at 19).

Plaintiff admitted at trial that she was seeking to offer the Awtry survey evidence

for the truth of the matter asserted and therefore that it was hearsay. (See Dkt. 360 at 154

(Plaintiff’s counsel arguing that “if [Awtry] knew . . . she was a good or she was doing

well with her employees and had a good relationship with her employees, that goes with

the overall reason for her employment, and overall reason for her termination.”)). Even if

the survey were not hearsay, Plaintiff has failed to demonstrate how the exclusion of this

evidence entitles her to a new trial. The jury heard other evidence about Plaintiff’s

relationship with her subordinates, including testimony from Awtry, that Plaintiff had a

positive relationship with her subordinates—essentially confirming what was purportedly

demonstrated by the survey. (See Dkt. 375 at 163 (Awtry’s testimony that Plaintiff had

“very good” relationships with her subordinates, and that her team liked her)). Plaintiff

has thus failed to show that admission of the Awtry survey would have changed the

outcome of the trial. For those reasons, Plaintiff is not entitled to a new trial based on the

Court’s ruling with respect to the survey evidence in this case.

D. Rathbun Resignation Letter

Plaintiff next argues that she is entitled to a new trial because the Court erred by

not admitting Rathbun’s resignation letter (Exhibit 105) at trial, as well as any underlying

testimony relating to the letter. (Dkt. 386 at 20-21). Plaintiff contends that the letter, in

which Rathbun states that she was “managed out of the company” because she was not

paid as well as her male counterparts and was not invited to strategic meetings, was not

hearsay because it was offered to show Absolute’s awareness of complaints and its

failure to investigate those complaints. (Id. at 20). Plaintiff also argues that the letter

was admissible under Rule 803(6) because it is a business record. (Id. at 21).

The Court precluded the admission of Exhibit 105 because it was not relevant to

Plaintiff’s claims. Rathbun’s resignation occurred more than one year after Plaintiff’s

termination, when Awtry was no longer Rathbun’s supervisor, and Kenny was no longer

at the company. (See Dkt. 253 at 28, 31 (transcript from August 6, 2021 conference,

where Court stated, “Let me be clear, I don’t think it’s relevant to show that . . . over a

year after Ms. Piehler was terminated that there was another complaint of discrimination

that the company did not follow up on.”)). In other words, Rathbun’s reasons for leaving

Absolute occurred under completely different circumstances than those that existed at the

time of Plaintiff’s termination. Plaintiff does not even acknowledge, let alone

meaningfully address this reasoning in her motion papers—rather, she simply rehashes

the arguments she made at the August 6, 2021 conference.9

9 Plaintiff also suggests that Olsen’s deposition testimony that complaints of

discrimination should be investigated, and that Rathbun’s claims were not investigated,

As to Plaintiff’s claim that the Rathbun resignation letter should have been

admitted as a business record under Rule 803(6), Plaintiff contends that “the document

was produced as part of this litigation and was therefore stored as a business record,” and

that Olsen testified that the letter “was the basis for Absolute paying Ms. Rathbun

$100,000 in severance.” (Dkt. 386 at 21).

Under Rule 803(6), a record may be excepted from the rule against hearsay if it

meets the following criteria:

(A) the record was made at or near the time by--or from information

transmitted by--someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a

business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or

another qualified witness, or by a certification that complies with Rule

902(11) or (12) or with a statute permitting certification; and

(E) the opponent does not show that the source of information or the

method or circumstances of preparation indicate a lack of trustworthiness.

See Fed. R. Evid. 803(6). Prior to trial the Court granted Plaintiff the opportunity to

submit a letter supporting the admission of Rathbun’s resignation letter under the

business record exception (see Dkt. 253 at 30-32), but Plaintiff ultimately made no such

submission. Plaintiff has again failed to do so here in connection with the instant

motion—in fact, she makes no argument as to why Rathbun’s resignation letter fits these

criteria, nor has she cited any case law supporting that the letter would qualify as a

establishes the relevance of the Rathbun letter. (See Dkt. 386 at 21). Plaintiff grossly

mischaracterizes Olsen’s testimony. In fact, Olsen was not shown or questioned

regarding the Rathbun resignation letter, nor did he testify that the claims in the letter

were not investigated. Accordingly, the Olsen deposition testimony does not support

Plaintiff’s relevance argument.

business record. By definition, a “business record” is a record of regularly conducted

activity, and a resignation letter is presumably submitted on only one occasion—when a

person resigns. Absent any further showing from Plaintiff on this issue, the Court

concludes that it did not err in precluding the admission of the Rathbun resignation letter.

Finally, Plaintiff cannot show that she was prejudiced by the Court’s preclusion of

the Rathbun resignation letter, because Rathbun testified at length regarding the

discrimination she believed she experienced at Absolute, including by referencing her

resignation letter.10 (See, e.g., Dkt. 394-18 at 5 (noting that “Absolute was fairly

discriminatory”); id. at 8 (discussing that Awtry and Kenny were not inclusive of

women); id. at (discussing that men made more money than she did); id. at 10 (discussing

that Rathbun submitted a resignation letter)). Given that the jury ultimately heard this

information, Plaintiff cannot demonstrate prejudice, and therefore she is not entitled to a

new trial on this basis.

E. Art Robinson Comments

Plaintiff further argues that she is entitled to a new trial because the Court

excluded emails and comments made by Absolute employee Art Robinson. (Dkt. 386 at

21-23). Plaintiff argues that the comments made by Robinson—including his comment

that a “woman should never be president,” referring to “make up sex” with a customer,

and commenting that a client was “going to rape us on price,” were relevant to Plaintiff’s

claims and should have been admitted at trial. (Id. at 22). Plaintiff contends that she was

10 Rathbun’s testimony was offered by way of deposition designations. She was not

called as a live witness at trial.

not able to “counter Defendants’ narrative” due to the exclusion of these comments.

(Id.). During the trial both Plaintiff and Defendants ultimately agreed not to call

Robinson as a witness, and in fact Plaintiff asked that no party read his deposition

testimony. (See Dkt. 394-19 at 2 (March 12, 2023 email from Plaintiff’s counsel to

defense counsel, stating that “We have spoken to our client and she is fine with

defendants not calling Mr. Robinson, with the understanding that neither side will use his

deposition testimony.”) (emphasis added)).

“Courts must weigh the following factors when determining whether a comment

evinces an intent to discriminate: (1) whether a decisionmaker made the remark; (2)

whether the remark was made close in time to the employment decision(s) at issue; (3)

the content of the remark; and (4) whether the remark was made in connection with the

decisionmaking process.” Quinby v. WestLB AG, No. 04 Civ. 7406(WHP), 2007 WL

3047111, at *1 (S.D.N.Y. Oct. 18, 2007) (citing Silver v. N. Shore Univ. Hosp., 490 F.

Supp. 2d 254, 363 (S.D.N.Y. 2007)). At the August 6, 2021 conference, the Court ruled

that the Robinson comments should be excluded at trial because Robinson was not a

decisionmaker with respect to Plaintiff’s employment—a fact Plaintiff admitted at the

conference. (Dkt. 253 at 14-15); see also Quinby, 2007 WL 3047111, at *1 (“Generally

speaking, comments by nondecisionmakers cannot be used to establish discriminatory

animus. Moreover, comments by decisionmakers that do not bear on the decisionmaking

process itself, are not pro[b]ative of discriminatory animus.”)). In addition, the Robinson

comments were not made in connection with the decisionmaking process to terminate

Plaintiff. The Court further precluded the “make up sex” and “rape” comments given

they were made in 2016, well after Plaintiff was terminated, and even if relevant they

would be unfairly prejudicial under Rule 403. (Dkt. 253 at 16).

In connection with her motion, Plaintiff simply rehashes the arguments she raised

at the August 6, 2021 conference, and she has again failed to establish that Robinson was

a decisionmaker with respect to the termination of her employment—rather, she states

only that Robinson was one of the longest-tenured employees at Absolute, was familiar

with Absolute’s culture, and was promoted after Plaintiff was terminated. (Dkt. 386 at

22-23). Under the framework in Quinby, this showing is not enough to demonstrate that

Robinson was a decisionmaker, including because Robinson did not make decisions with

respect to Plaintiff’s employment, his remarks were not made close in time to the

employment decisions at issue, and the remarks were not made in connection with the

decisionmaking process.11 Plaintiff is thus not entitled to a new trial on the basis that the

Court excluded the Art Robinson comments.

F. Bullying Complaint Against Rathbun

Plaintiff also argues that she is entitled to a new trial because the Court admitted

proof of a bullying complaint against Rathbun. (Dkt. 386 at 23-24). Plaintiff argues that

it was error for the Court to admit such evidence, since Rathbun was a non-party witness

11 Plaintiff’s argument that she was not permitted “to counter Defendants’ narrative”

that Absolute had an acceptable culture for women misses the mark. At trial, Defendants

presented evidence with respect to the equitable treatment of women within the company,

and Plaintiff was permitted to counter this evidence, including through her own testimony

and through Rathbun’s testimony. But Defendants did not present this evidence through

non-decisionmakers’ treatment of women, and therefore Robinson’s comments—those of

a non-decisionmaker—were not relevant.

and the evidence was irrelevant to her claims. (Id. at 23). Plaintiff characterizes the

bullying complaint as “impermissible character evidence,” and Defendants’ offering of it

as “an attempt to smear Ms. Rathbun’s status as a superstar witness,” citing to Rule

608(b) of the Federal Rules of Evidence. (Id.).

To begin with, Plaintiff’s reliance on Rule 608(b) is misplaced. “Rule 608,

prohibits proof, by extrinsic evidence, of past conduct of a witness for the purpose of

attacking his credibility. The rule is inapplicable in determining the admissibility of

evidence introduced to impeach a witness’s testimony as to a material issue.” Lamborn v.

Dittmer, 873 F.2d 522, 527-28 (2d Cir. 1989). Because the Court found that the bullying

complaint was impeachment evidence and that Plaintiff herself had opened the door to

such evidence, Rule 608(b) is inapplicable.

As the Court explained at trial, Plaintiff opened the door to the admission of the

bullying complaint against Rathbun. During Rathbun’s testimony at trial, she testified to

the discriminatory culture at Absolute, including bullying of women perpetrated by men.

(See, e.g., Dkt. 394-18 at 9 (Rathbun testifying that she objected to bullying by Kurt

Luporini); id. at 11 (Rathbun’s testimony that, as a woman, she felt bullied at Absolute);

id. at 16 (discussing examples of bullying); id. at 17 (discussing whether she reported

incidents of bullying she experienced)). Given Rathbun’s testimony that she was the

victim of bullying and of bullying that occurred at Absolute, the bullying complaint

levied against her was relevant impeachment evidence at trial. As the Court explained in

its pretrial ruling on this matter, witness credibility is always an issue at trial, and the

complaint could become relevant impeachment material depending on Rathbun’s

testimony. (See Dkt. 243 at 5-6 (explaining that the Rathbun complaint was “fair cross

examination” and went “to credibility issues.”)); see also Martinez v. City of N.Y., No.

16-CV-79 (NRM) (CLP), 2022 WL 17090267, at *5 (E.D.N.Y. Nov. 18, 2022)

(“Evidence that bears on a witness’s credibility is ‘always relevant’” (quoting United

States v. Quinto, 582 F.2d 224, 233 (2d Cir. 1978)). Plaintiff has offered no meaningful

argument about why the bullying complaint is not relevant impeachment evidence.

Accordingly, Plaintiff’s motion for a new trial on this basis is denied.

G. Exclusion of the Lubahn Complaint

Plaintiff further contends that the Court improperly excluded the Lubahn

complaint as evidence and therefore she is entitled to a new trial. (Dkt. 386 at 24-25).

Plaintiff argues that the Lubahn complaint was relevant in that it involved overlapping

discriminatory comments made by Kenny in April 2015, and that had the Court admitted

the complaint, “Plaintiff would have been able to further press on Absolute’s supposed

position that only ‘formal’ complaints of discrimination would be investigated.” (Id. at

24).

The Lubahn case involved allegations of age discrimination. As discussed above,

Plaintiff abandoned any such claims before trial, and it is thus unclear what bearing

Plaintiff believes the admission of the Lubahn complaint would have had on her

remaining claims at trial.

As to Plaintiff’s argument that the Lubahn complaint would have allowed her to

explore Absolute’s position that only formal complaints of discrimination would be

investigated, Plaintiff offers no specifics as to this issue and, in fact, Plaintiff presented

evidence on this very issue through the deposition testimony of Daniel Berardo,

Absolute’s head of Human Resources at the time of Plaintiff’s termination. (See, e.g.,

Dkt 400-6). Accordingly, Plaintiff in unable to show that she was prejudiced by the

exclusion of this evidence.

Finally, admission of the Lubahn complaint—which contains only allegations of

discriminatory conduct—would have been improper, since in addition to being irrelevant,

it would have been of little probative value. See, e.g., Bd. of Trustees of AFTRA Ret.

Fund v. JPMorgan Chase Bank, N.A., 860 F. Supp. 2d 251, 254-55 (S.D.N.Y. 2012)

(holding that the plaintiffs could not introduce evidence of other lawsuits, and explaining

that “courts generally exclude evidence of other related lawsuits” and that there is “little

probative value in allegations only”). “Such evidence is excluded because the probative

value of the existence of other lawsuits typically is substantially outweighed by the

danger of unfair prejudice.” Puglisi v. Town of Hempstead Sanitary Dist. No. 2, No. 11-

CV-445 (PKC), 2014 WL 12843521, at *2 (E.D.N.Y. Jan. 27, 2014). Plaintiff has thus

failed to demonstrate that she is entitled to a new trial on this basis.

H. Proffer on Unpaid Commissions

Plaintiff further contends that she is entitled to a new trial because the Court erred

by requiring her to provide evidentiary proof that she was not paid her full commissions,

but did not require Defendants to produce proof that she was paid her commissions.12

12 Plaintiff misapprehends the burden of proof in a civil trial. Plaintiff claimed that

the withholding of commissions constituted an adverse action, which was one of the

prima facie elements she was required to prove to succeed on her claims. In other words,

(Dkt. 386 at 25). The Court ruled before trial that Plaintiff could testify that she was not

paid her full commissions, as long as she could provide evidence to support her

testimony. Specifically, the Court explained that, without evidentiary support, “we will

be having a trial within a trial on a complicated calculation, and Rule 403 would preclude

that evidence.” (Dkt. 321 at 15).

Then, by way of letter dated March 6, 2023, Plaintiff’s counsel stated:

Pursuant to Your Honor’s request today for a proffer regarding how Ms.

Piehler was not paid her Department of Education (“DOE”) commissions,

Plaintiff’s Exhibit 166 demonstrates Mr. Awtry’s directive that females be

paid less than males. A copy of Exhibit 166 is attached as Exhibit A.

(See Dkt. 351). Exhibit 166 consisted of an email from Awtry with respect to the DOE

investigation. Contrary to counsel’s representation, the email did not include a directive

from Awtry that females be paid less than males—rather, the document was a two-page

email from Awtry to Plaintiff, copied to Berardo, Caroline Nelson, and Leigh Ramsden,

summarizing the “review of the NY DOE ordering process” and sharing “next steps.”

(Id. at 3-4). The email did not state, nor did it imply, any directive that men should be

paid more than women. When the Court raised this issue with counsel on March 7, 2023,

counsel could not direct the Court to the portion of the email he claimed contained a

directive that men be paid more than women. (See Dkt. 360 at 3-5 (“[A]s I said before, in

the pretrial filings, if the Plaintiff wants to introduce evidence that Ms. Piehler was not

ultimately paid what she was entitled to, you need something concrete. I’m not seeing it

the burden is on Plaintiff to prove an adverse action—Defendants are not required to

disprove it by coming forward with evidence that Plaintiff was paid her commissions.

in Mr. Ferris’s letter or this attachment, which is exhibit 166.”)). Plaintiff ultimately

stated that she did not intend to “go through the pay data,” since it “takes an hour plus to

get through.” (Id. at 6). Then, in response to the undersigned’s question, “it doesn’t

sound as though you’re wanting her to ultimately testify to [that she ultimately was not

paid what she was promised to be paid], correct, Mr. Thomas,” Plaintiff’s counsel

responded, “[t]hat’s correct, she is not going to make that statement.” (Id. at 7).

Pursuant to Rule 403 of the Federal Rules of Evidence, a trial court has “broad

discretion to exclude even relevant evidence if its probative value is substantially

outweighed by the danger of confusion of the issues or if it would be needlessly

cumulative.” United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1193 (2d Cir.

1989); see also In re: Gen. Motors LLC, No. 14-MD-2543 (JMF), 2015 WL 8578945, at

*7 (S.D.N.Y. Dec. 9, 2015) (excluding evidence under Rule 403 because of unfair

prejudice, misleading and confusing the jury, and wasting time, where the evidence

“could easily lead the jury to speculate—with no evidentiary basis—about whether the

medication impaired Plaintiff’s driving abilities” in case concerning automobile

accident).

Here, it was well within the Court’s discretion to require Plaintiff to make an

evidentiary proffer before allowing the jury to hear evidence about payment of the DOE

commissions. This is because determining the commissions involved a complex

computation, a fact underscored by Plaintiff’s acknowledgment that it would be

burdensome to go through the pay data. In other words, in expecting the jury to sift

through these computations as to which commissions were properly or improperly paid,

the parties would essentially be presenting the jury with a “trial within a trial” regarding

the unpaid versus paid commissions.

The Court has a duty to guard against evidence that would be overly burdensome

or confusing for the jury, and Plaintiff has failed to challenge the Court’s determination

in this respect. Further, Plaintiff had ample notice that the Court would require her to

make this showing, and she failed to come forward with evidence supporting her

assertion that she was not paid her commissions, while men were paid their commissions.

Plaintiff is thus not entitled to a new trial on this basis.

I. Defendants’ Evidence on Reasons for Termination

Plaintiff lastly argues that allowing Defendants to offer new and different reasons

for her termination at trial was highly prejudicial and warrants a new trial. (Dkt. 386 at

25-26). Plaintiff points specifically to the admission of evidence that she did not meet

her sales goals, that she did not have a balanced book of business, and her lack of

cybersecurity experience, arguing that this evidence was prejudicial since the sole reason

previously proffered by Defendants was that Awtry and Plaintiff did not get along. (Id. at

26). Plaintiff argues that she was forced to spend considerable time at trial attacking

these new reasons for termination, and that “this resulted in confusing and conflating the

issues for the jury, who now had to sort through a plethora of supposed reasons” for

Plaintiff’s termination, and that this evidence should have been barred as not relevant

under Rules 401 and 402, and as unduly prejudicial under Rule 403. (Id.).

Other than describing the three general reasons offered by Defendants for her

termination that she believes were improperly offered at trial, Plaintiff has identified no

specific evidence admitted to which she objects, and therefore she has failed to show how

she was prejudiced. Even if Plaintiff had properly identified this evidence, her relevancy

challenge falls flat. At trial, Plaintiff claimed that she was terminated based on gender

discrimination and retaliation, and therefore evidence on other, non-gender or non-

retaliatory reasons for her termination was plainly relevant.

Plaintiff’s contention that the reasons offered by Defendants were new or had not

been offered before trial is not supported by the record. In fact, the Court’s decision

denying Defendants’ motion for summary judgment references other reasons offered by

Defendants for Plaintiff’s termination and/or treatment at Absolute, including poor

performance reviews (see Dkt. 179 at 20), her cybersecurity experience (id. at 38), and

sales revenue (id. at 39 (discussing comparisons between Plaintiff’s and Robinson’s

performance, including in the metrics of quota attainment, sales revenue, and

performance ratings))—and therefore Plaintiff was aware of these other proffered reasons

since at least 2020. Further, Awtry’s declaration submitted in support of Defendants’

motion for summary judgment discusses various reasons for Plaintiff’s termination and

treatment at Absolute. (See, e.g., Dkt. 147 at ¶ 29 (“Ms. Piehler’s job performance during

the time that I supervised her was inconsistent. There were things that she did well and

things she did not do well. There were quarters in which Piehler’s team met its sales

quota. However, her team did not meet its overall sales quota in any fiscal year in which

I supervised her.”); id. at ¶ 40 (“In addition . . . prospective employees with cybersecurity

backgrounds were much in demand and able to command higher salaries because of their

backgrounds.”)). Plaintiff is thus hard-pressed to claim that she was surprised or

otherwise prejudiced when Defendants raised these same arguments at trial.

Further, Plaintiff has failed to demonstrate how Defendants’ offering these other

reasons for her termination was confusing for the jury or was otherwise unduly

prejudicial. Evidence that Plaintiff did not meet her sales goals or lacked cybersecurity

experience is not the kind of confusing or burdensome evidence that the Court would

preclude a jury from receiving, and Plaintiff has failed to offer further specifics as to why

she believes that this evidence confused the jury.

Finally, the Court notes that, if a party is contradicting prior statements—as

Plaintiff sought to do here regarding Defendants’ proffered reasons for her termination—

preclusion is not the appropriate remedy. Rather, the opposing party should use the prior

evidence to impeach the relevant witness’s testimony—a fact that Plaintiff’s counsel

agreed to during pre-trial argument on this issue. (See Dkt. 240 at 41 (Plaintiff agreeing

with the Court’s statement that, if Awtry testified differently than he did during his

deposition, that would be a proper issue cross-examination, as opposed to having the

Court preclude Awtry from testifying differently)); see also Fed. R. Evid. 613. Plaintiff’s

failure to impeach the relevant witness does not warrant a new trial. For all of those

reasons, Plaintiff is not entitled to a new trial on this basis.

II. Plaintiff’s and Defendants’ Motions for Judgment as a Matter of Law

In the alternative to her motion for a new trial, Plaintiff argues that the Court

should enter judgment as a matter of law on her gender discrimination claims pursuant to

Rule 50(b) of the Federal Rules of Civil Procedure. (Dkt. 386 at 27-28). Defendants

contend that they are entitled to judgment as a matter of law on Plaintiff’s NYSHRL

retaliation claim. (Dkt. 381).

Under Rule 50, the Court may grant a motion for judgment as a matter of law in a

jury trial if it finds “that a reasonable jury would not have a legally sufficient evidentiary

basis to find for the party” opposing the request. Fed. R. Civ. P. 50(a). The same

standard applies when, as here, a party renews its request for judgment as a matter of law

after the trial is complete. See Fed. R. Civ. P. 50(b).

“In ruling on a motion for judgment as a matter of law, the court may not itself

weigh credibility or otherwise consider the weight of the evidence; rather, it must defer to

the credibility assessments that may have been made by the jury and the reasonable

factual inferences that may have been drawn by the jury.” Williams v. Cnty. of

Westchester, 171 F.3d 98, 101 (2d Cir. 1999); see also Stevens v. Rite Aid Corp., 851

F.3d 224, 228 (2d Cir. 2017) (“Judgment as a matter of law may not properly be granted

under Rule 50 unless the evidence, viewed in the light most favorable to the opposing

party, is insufficient to permit a reasonable juror to find in his favor.” (citation and

alteration omitted)). Accordingly, the Court may not grant judgment as a matter of law

unless “(1) there is such a complete absence of evidence supporting the verdict that the

jury’s findings could only have been the result of sheer surmise and conjecture, or (2)

there is such an overwhelming amount of evidence in favor of the movant that reasonable

and fair minded persons could not arrive at a verdict against it.” Williams, 171 F.3d at

101 (alterations omitted and quoting Cruz v. Local Union No. 3 of the Int’l Bhd. of Elec.

Workers, 34 F.3d 1148, 1154 (2d Cir. 1994)); see also Wierzbic v. Howard, 331 F.R.D.

32, 45 (W.D.N.Y. 2019) (“In ruling on a motion for judgment as a matter of law, the

motion will be granted only if (1) there is a complete absence of probative evidence to

support a verdict for the non-movant or (2) the evidence is so strongly and

overwhelmingly in favor of the movant that reasonable and fair minded men in the

exercise of impartial judgment could not arrive at a verdict against him.” (quotation and

alteration omitted)), aff’d, 836 F. App’x 31 (2d Cir. 2020). This “standard places a

particularly heavy burden on the movant where, as here, the jury has deliberated in the

case and actually returned its verdict in favor of the non-movant.” Morse v. Fusto, 804

F.3d 538, 546 (2d Cir. 2015) (quotations omitted).

A. Defendants’ Motion

Defendants contend that a reasonable jury could not have found for Plaintiff on the

claim for retaliation in violation of the NYSHRL, and the verdict on that cause of action

should be vacated. (Dkt. 383 at 10). Defendants argue in the alternative that, even if

Plaintiff had established a claim for retaliation, she has failed to prove that the

termination of her employment was causally related to any protected activity; therefore

Plaintiff is not entitled to an award for lost wages and there is no need for the Court to

proceed to the damages phase of the trial. (Id. at 20-28). The Court agrees, for the

reasons that follow.

1. No Evidence of Protected Activity Known to Employer

To establish a prima facie case of retaliation, Plaintiff must show: “(1) she

engaged in protected activity; (2) the employer was aware of that activity; (3) the

employee suffered a materially adverse action; and (4) there was a causal connection

between the protected activity and that adverse action.” Kelly v. Howard I. Shapiro &

Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (citation omitted).

Retaliation claims are subject to a but-for causation test. Vega v. Hempstead Union Free

Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (citing Univ. of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338, 362 (2013)).13

“An employee engages in a protected activity when she complains of an

employment practice that she reasonably believes violates the law.” Mayers v. Emigrant

Bancorp, Inc., 796 F. Supp. 2d 434, 448 (S.D.N.Y. 2011). “Mere complaints of unfair

treatment . . . are not protected speech in the employment retaliation context, and the

onus is on the speaker to clarify to the employer that he is complaining of unfair

treatment due to his membership in a protected class and that he is not complaining

merely of unfair treatment generally.” Benzinger v. Lukoil Pan Ams., LLC, 447 F. Supp.

3d 99, 124 (S.D.N.Y. 2020) (citation and quotations omitted)). “Although particular

words such as ‘discrimination’ are not required to put an employer on notice of a

protected complaint,” see Guzman v. Crothall Healthcare, Inc., No. 17-CV-4306-

13 Although the Second Circuit has not “conclusively resolved whether the but-for

causation standard applies to [retaliation] claims under the NYSHRL,” it has “implicitly

applied the but-for standard to NYSHRL claims.” Farmer v. Shake Shack Enterprises,

LLC, No. 19 CIV. 9425 (PAE), 2020 WL 4194860, at *13 n.7 (S.D.N.Y. July 21, 2020)

(citations omitted); Kirkland-Hudson v. Mt. Vernon City Sch. Dist., 665 F. Supp. 3d 412,

462 (S.D.N.Y. 2023) (citing Heiden v. N.Y. City Health & Hosps. Corp., No. 20-CV-

10288, 2023 WL 171888, at *22 (S.D.N.Y. Jan. 11, 2023) (concluding that but-for

causation applies to NYSHRL retaliation claims)); see also Henvill v. Metro. Trans.

Auth., No. 22-2731-cv, 2023 WL 7294702, at *1 (2d Cir. Nov. 6, 2023) (both plaintiff’s

Title VII and NYSHRL claims required a showing that the protected activity was a but-

for cause of the adverse employment action).

CBA(PK), 2021 WL 5048993, at *16 (E.D.N.Y. Sept. 29, 2021), the employer must have

understood or could have reasonably understood that a plaintiff was complaining about

discrimination based on the protected characteristic—in this case, gender discrimination.

See Kelly, 716 F.3d at 15 (“As to the second element [of the prima facie case], implicit 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 plaintiff’s

opposition was directed at conduct prohibited by Title VII.” (quoting Galdieri-Ambrosini

v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)); see also Rodas v. Town

of Farmington, 918 F. Supp. 2d 183, 189 (W.D.N.Y. 2013) (“Although a plaintiff need

not explicitly allege a violation of Title VII in making a complaint about working

conditions to be considered protected activity, the plaintiff must complain of

discrimination in sufficiently specific terms to put the employer on notice that the

plaintiff believes he or she is being discriminated against on the basis of race, gender,

national origin, or any other characteristic. . . .” (internal citation omitted)), aff’d, 567 F.

App’x 24 (2d Cir. 2014).

Here, as discussed below, there is a complete lack of evidence that Plaintiff

(1) complained of treatment based on her gender, or (2) that Defendants understood or

could have reasonably understood that Plaintiff complained about gender

discrimination.14

14 At the summary judgment stage, Plaintiff submitted an affirmation in which she

stated that she was treated differently because of her gender (see Dkt. 156 at ¶¶ 73, 77),

which the Court found was sufficient to survive summary judgment. However, at trial,

At trial, Plaintiff offered proof about complaints she made in connection with the

investigation of her billing of the DOE account. The evidence at trial revealed that

Plaintiff spoke to Berardo by phone on June 30, 2014, to find out whether he was aware

of the investigation and to discuss withheld salary and commissions. (See Dkt. 360 at 83-

85; see also id. at 159 (Plaintiff describing her request to speak to Berardo on “the last

day of the fiscal year”)). Following this conversation, Plaintiff sent a follow-up email to

Berardo. (Id. at 161-62). Plaintiff also testified that she spoke to Olsen in Vancouver in

July 2014 regarding the DOE investigation. (Id. at 215-17).15

So there is no question that Plaintiff complained about the DOE investigation, but

at no point during her trial testimony did she link those complaints to claims of gender

discrimination. For example, when describing her interaction with Berardo, Plaintiff

testified that she asked him “if he was aware of what was going on” and “if [she] was

being fired.” (Id. at 83). Plaintiff testified she told Berardo that she did not receive her

pay or commissions, and Berardo responded that he would inquire as to why her pay was

being withheld, as well as her commissions from other accounts. (Id. at 84-85). At no

time did Plaintiff testify that she complained of unfair treatment she experienced based

on her gender, or that she communicated the same to Berardo.

Plaintiff never presented that proof. Rather, her testimony was not that she was treated

unfairly to males, but that she was treated differently than “others.”

15 At trial, Plaintiff relied only on her reports regarding the DOE investigation that

took place in summer 2014 in support of her claim that she engaged in protected activity.

(See, e.g., Dkt. 345 at 2; see also Dkt. 363 at 58 (plaintiff’s counsel stating at trial that,

“[y]our Honor, I will grant that that is our position at trial. That the—her last formal

complaint to Mr. Olsen or Mr. Berardo occurred in the summer of 2014”)).

Similarly, when describing her interaction with Olsen, Plaintiff testified that she

expressed to him that she was upset about an accusation of stealing and that she was

never publicly exonerated, that it was unprofessional that Awtry had emailed out

everyone’s performance rankings, and that she had limited visibility to Haydon. (Dkt.

360 at 216-17). When Plaintiff’s attorney questioned her at trial as to what she believed

caused the unequal treatment she experienced, Plaintiff said, “[w]ell, Errol knew. I mean

Errol was aware of the DOE saga. I mean, he knew exactly what had went on and he

listened very patiently and very intently to me as I spoke to him.” (Id. at 217). Again,

Plaintiff did not identify gender discrimination as the basis for why she believed she was

being treated unfairly, nor did she state that she communicated the same to Olsen. (See

id. at 218 (Plaintiff acknowledging that she did not use the word “discrimination,” but

that she wanted to be treated like the other managers)).

Similarly, Plaintiff has failed to present evidence indicating that Defendants knew

or reasonably should have known that she was complaining about treatment based on her

gender. Both Olsen and Berardo denied understanding Plaintiff to be complaining about

gender discrimination when she came to them to discuss the DOE investigation. (See

Dkt. 400-6 at 8-9, 11 (deposition testimony of Daniel Berardo, stating that he never

investigated anything from a discriminatory point of view, because discrimination was

never raised and was not apparent in any of Plaintiff’s communications to him, and

Plaintiff never complained of sexual harassment, or discrimination of any kind); Dkt.

400-8 at 5-6, 9 (deposition testimony of Errol Olsen, explaining that there was nothing in

Plaintiff’s complaints that were gender related, and that to his knowledge she never

complained about discrimination while working at Absolute)).16

As the Court noted at oral argument on the present motion (see Dkt. 417 at 20-22),

Plaintiff has presented no evidence that she complained of unfair treatment based on her

gender, or that Defendants knew or should have known that she was complaining of

treatment based on her gender. The evidence at trial established that both men and

women were investigated in connection with the billing of the DOE account.

Specifically, Plaintiff testified that she agreed “the three people who were most directly

involved with the DOE account were Charles Springay, Justin Peacock and [herself],”

and that Springay and Peacock were also under investigation related to the billing on the

DOE accounts, and they also had their commissions withheld. (See Dkt. 359 at 52-53).

Although Plaintiff testified at trial that Michael Kenney, who was one of the individuals

who managed the inside sales team and was “half of the process of recording orders”

received his commissions (see Dkt. 360 at 81-83), Kenney was not under investigation

with respect to the billing on the DOE account, nor did Plaintiff testify that she

communicated this to Olsen or Berardo. Given that the evidence at trial demonstrated

that Plaintiff did not complain about gender discrimination, and none of her

communications to Olsen or Berardo suggested that she was complaining of gender

discrimination, the Court can discern no reasonable basis for the jury to have found that

Plaintiff was complaining of gender discrimination, rather than unfair treatment

generally.

16 Prior to trial, the parties agreed that Berardo and Olsen would not testify as live

witnesses, but rather portions of their deposition testimony would be read in as proof at

trial.

In opposition to Defendants’ motion, Plaintiff cites to evidence offered at trial

with respect to the DOE investigation, in which she communicated that she wanted to be

“treated equally,” or treated “like the others.” For example, at trial Plaintiff testified

about a phone call she had with Berardo, in which she stated that “I told him that I was

concerned that I wanted to be treated equally to the others.” (Dkt. 360 at 160-61). Then

Plaintiff sent a follow-up email to Berardo, which was offered at trial as Plaintiff’s

Exhibit 21. (Id. at 161-62; see also Dkt. 396 at 9). In the email, Plaintiff wrote that she

did not want to be “known as a troublemaker, all I want is the data reflected correctly and

to be paid fairly.” (See Plaintiff’s Trial Exh. 21, Dkt. 395-1 at 69). Plaintiff stated she

thought it was odd there was an investigation into her DOE sales, but Absolute “did not

launch a corporate investigation in my CER who I identified as having a part time job,

during the day, when Absolute is paying him to be here hunting business for the

Northeast.” (Id.). When Plaintiff was asked what she meant by “known as a trouble

maker,” she testified that “I meant it exactly as I wrote it. I didn’t want to be known as

someone that was just randomly complaining about everything.” (Dkt. 360 at 162-63).

And when asked what she meant by “[a]ll I want is the data reflected correctly and to be

paid fairly,” Plaintiff stated that she wanted to be “[p]aid fairly in comparison to other

people that were being paid on my business.” (Id. at 163).

These kinds of comments—such as that Plaintiff wanted to be treated “like the

others,” or “fairly”—are insufficient as a matter of law to place an employer on notice of

gender discrimination. See, e.g., Guzman, 2021 WL 5048993, at *16 (where the plaintiff

was the subject of a company investigation for improper timekeeping practices, and

argued that she “engaged in a protected activity when she sent a letter to human resources

. . . , expressly stating that she was being singled out and treated differently than others,”

holding that the plaintiff failed to allege conduct that would put a reasonable employer on

notice that the complaint was about unlawful discriminatory practices, because she did

not reference a protected characteristic in her complaint); Benzinger, 447 F. Supp. 3d at

126 (dismissing retaliation claim where the plaintiff complained of “unfair treatment”

and that another employee was paid more than she was, because no Lukoil employee was

aware or could have reasonably understood the plaintiff’s complaints to be directed at

conduct prohibited by the NYSHRL); Brummell v. Webster Cent. Sch. Dist., No. 06-CV-

6437, 2009 WL 232789, at *4-5 (W.D.N.Y. Jan 29, 2009) (the plaintiff failed to state a

claim for retaliation, because while she complained that she was being treated differently

than other employees, “at no time did [the plaintiff] allege that she was being treated

differently because she was a woman,” and “general complaints about employment

concerns do not constitute protected activity”); see also Rodas, 918 F. Supp. 2d at 189-90

(where the plaintiff complained of being sexually harassed, finding no protected activity

since “[a]t no time did Rodas allege that he was being treated differently because he was

a man, or that Crane treated him or other men differently because of their gender,” and

explaining that “[a]s a matter of law, a reasonable, objective belief that an employee is

complaining of sex discrimination cannot arise simply because the behavior in question

touches on the issue of sex”).

Plaintiff further argues that the “jury was presented with direct evidence” that

Absolute understood, or could have understood, that Plaintiff was engaging in protected

activity, since Berardo testified that Absolute had a duty to investigate claims involving

potential discrimination. (Dkt. 396 at 20). Specifically, Plaintiff argues that Berardo

stated he would follow-up on a complaint under the following circumstances: (1) a

female employee complaining that they were not being treated fairly; (2) a female

employee stating that they wanted to be treated the same as their male colleagues; (3) a

female employee stating that she was being treated differently than her male counterparts,

(4) a female employee stating that they wanted to be paid fairly; (5) a female employee

stating that a male employee was being paid full value and she wanted to also be paid full

value for her work; and (6) an employee telling him that they did not want to be known as

a “troublemaker.” Plaintiff argues that this testimony shows that Berardo understood her

to be complaining of gender discrimination. (Id. at 21-22).

This argument is based on two mischaracterizations of the record. First, Plaintiff

did not complain to Berardo, Olsen, or any other person at Absolute that she wanted to be

treated the same or paid the same as her “male colleagues” or “male counterparts.”

Rather, as explained above, Plaintiff repeatedly referred to her desire to be treated

“equally,” “fairly,” or “like the others,” without specifying who those “others” were.

Second, Berardo did not testify that he would believe or reasonably believe that a

complaint falling into any of the above six categories would implicate discriminatory

conduct. Rather, Berardo testified that he would act to investigate any such complaint

further. (See Dkt. 400-6 at 6-7 (Berardo testifying that he would get specifics and gather

information on what the employee was complaining about, so that he could investigate

further)). Contrary to Plaintiff’s implication, at no time did Berardo testify that he would

find any of the above six instances would raise any inference of discrimination. Here,

Berardo followed up on Plaintiff’s complaints by asking her to email him which, as

discussed above, raised no issue about discrimination based on gender.

In short, there was no evidence offered at trial supporting that Plaintiff (1) was

complaining of treatment based on her gender, or (2) that Defendants understood or could

have reasonably understood that Plaintiff was complaining about gender discrimination.

While Plaintiff complained to both Berardo and Olsen about her treatment during the

DOE investigation, general complaints—in other words, those motivated by non-

protected characteristics—cannot sustain a claim for retaliation. See, e.g., Zacharowicz v.

Nassau Health Care Corp., 177 F. App’x 152, 155 (2d Cir. 2006) (“nondiscriminatory-

grounded dislike, whether inappropriate, understandable, or neutral, does not, of course,

constitute a basis for a Title VII suit”). With no evidence in the record of protected

activity, the retaliation verdict cannot stand. Accordingly, the Court grants Defendants’

motion for judgment as a matter of law on Plaintiff’s retaliation claim, and vacates the

jury’s verdict on that cause of action. See, e.g., Galdieri-Ambrosini, 136 F.3d at 292

(affirming district court’s granting of judgment as a matter of law in defendant’s favor

following verdict for plaintiff on discrimination claims, including because “there was

nothing in [plaintiff’s] protests that could reasonably have led National Realty to

understand that [gender discrimination] was the nature of her objections”); Edelman v.

NYU Langone Health Sys., No. 21-cv-502 (LJL), ___ F. Supp. 3d ____, 2023 WL

8892482, at *15-19 (S.D.N.Y. Dec. 26, 2023) (granting judgment notwithstanding the

verdict in defendants’ favor following jury verdict for plaintiff on retaliation claim,

including because there was “a complete absence of evidence” supporting the proposition

that male defendant was aware plaintiff’s complaint concerned gender discrimination,

human resources manager testified she did not understand plaintiff’s complaint to

concern gender discrimination, but was a dispute over office space, and explaining that

“[d]espite what Plaintiff may have hoped to convey in her complaint,” testimony and

contemporaneous notes revealed that HR manager had a different understanding of

plaintiff’s grievance)17; see also Tepperwien v. Entergy Nuclear Options, 663 F.3d 556,

569-72 (2d Cir. 2011) (affirming district court’s granting of judgment as a matter of law

in defendant’s favor over jury verdict, since the actions complained of did not rise to the

level of being adverse employment actions).

2. Alternatively, No Causal Connection Between Protected Activity

and Plaintiff’s Termination

Defendants argue that, even if the jury’s finding that Plaintiff engaged in protected

activity was supported by the evidence, there is no causal connection between the alleged

protected activity and the termination of Plaintiff’s employment. (Dkt. 383 at 20).

Specifically, Defendants contend that the termination of Plaintiff’s employment was too

remote in time, that Plaintiff’s termination was contemplated before the alleged protected

activity, and that Plaintiff’s favorable performance review in February 2015 severs any

causal connection. (Id. at 21-25). Defendants further argue that this lack of causation

17 In Edelman, the plaintiff testified at trial that she made a complaint to the human

resources manager that she believed another employee was speaking to her in a sexist

manner, and “the only difference was that he was a male.” See Edelman, 2023 WL

8892482, at *15. As noted above, here, Plaintiff gave no such testimony.

between the protected activity and termination of Plaintiff’s employment negates the

need to proceed to the damages phase of the trial. (Id. at 27).18

In response, Plaintiff argues that she proved a causal connection between her

complaints of gender discrimination and her termination. (Dkt. 396 at 31). Specifically,

Plaintiff argues that she disproved Defendants’ proffered reasons for termination, that

Defendants “laid in wait” to terminate her, Defendants took escalating negative conduct

against her, and that Plaintiff did not rely on temporal scope alone. (Id. at 32-38). In

response to Defendants’ argument about the damages phase of the trial, Plaintiff contends

that “it is unclear how th[at] would even be permissible,” that Defendants have cited no

case law where a court has taken such action, and that the jury’s verdict did not parcel out

18 Defendants also make arguments with respect to other adverse employment

actions raised by Plaintiff at trial. Defendants argue that these other adverse actions

complained of by Plaintiff—that Awtry yelled at her, she had a negative performance

evaluation in August 2014, she did not receive a pay raise in 2013, and her DOE

commissions were withheld—do not qualify as adverse employment actions. (See Dkt.

383 at 17-20). It is well-settled that “the scope of actions that may be materially adverse

for purposes of a retaliation claim is broader than those prohibited for purposes of a

discrimination claim.” Ferraro v. N.Y.C. Dep’t of Educ., 404 F. Supp. 3d 691, 717

(E.D.N.Y. 2017) (discussing that counseling memorandums and negative evaluations

may be assumed to be adverse employment actions for purposes of retaliation claim),

aff’d, 752 F. App’x 70 (2d Cir. 2018); Giordano-Forkan v. N.Y.C. Dep’t of Educ., No. 13

Civ. 06950(GBD), 2014 WL 5369426, at *3 (S.D.N.Y. Oct. 17, 2014) (discussing that

loss of the use of wages constituted an adverse employment action for purposes of

retaliation claim); see also Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (anti-

retaliation protection is broader than anti-discrimination protection). Contrary to

Defendants’ implication, actions such as a negative performance review, or the failure to

give a raise, may be considered adverse employment actions for purposes of a retaliation

claim depending on the circumstances. The Court disagrees that a reasonable jury could

not find that these additional actions identified by Plaintiff were adverse employment

actions for purposes of a retaliation claim. But that finding does not impact the analysis

of whether a reasonable jury could have found a sufficient causal link between the

alleged protected activity and the termination of Plaintiff’s employment.

each of the adverse actions. (Id. at 38-39).

“A plaintiff may establish a causal connection either through direct evidence of

retaliatory animus or indirectly through circumstantial evidence,” and “[w]here there is

no direct evidence of retaliatory animus, proof of causation may be shown indirectly by

demonstrating that the protected activity was followed closely by a retaliatory action.”

Russell v. Aid to Developmentally Disabled, Inc., 416 F. Supp. 3d 225, 235-36 (E.D.N.Y.

2017). While “[t]here is no firm outer limit to the temporal proximity required . . . most

courts in the Second Circuit have held that a lapse of time beyond two or three months

will break the causal inference.” Kraiem v. JonesTrading Institutional Servs. LLC, 571 F.

Supp. 3d 53, 59-60 (S.D.N.Y. 2021) (citation omitted); see also Bamba v. Fenton, 758 F.

App’x 8, 12 (2d Cir. 2018) (no causation where retaliation occurred ten months after

complaint); Birch v. City of N.Y., 675 F. App’x 43, 45 (2d Cir. 2017) (passage of 17

months between protected activity and adverse employment action was “too long to

support an inference of causation”); Brown v. City of N.Y., 622 F. App’x 19, 20 (2d Cir.

2015) (“The time lapses between Brown’s protected activities and the alleged retaliatory

acts—ranging from two months to several years—were simply too attenuated to establish

that the alleged adverse employment actions were the product of a retaliatory motive

absent other supporting factual allegations.”); Burkybile v. Bd. of Educ., 411 F.3d 306,

314 (2d Cir. 2005) (no causation where “more than a year passed between [the plaintiff’s]

accusations . . . and the initiation of disciplinary proceedings”). When a plaintiff relies

solely on the passage of time between the protected activity and the adverse action, the

time between those two events must be very close. See Clark Cnty. Sch. Dist. v. Breeden,

532 U.S. 268, 273-74 (2001) (“[t]he cases that accept mere temporal proximity between

an employer’s knowledge of protected activity and an adverse employment action as

sufficient evidence of causality to establish a prima facie case uniformly hold that the

temporal proximity must be ‘very close’”). Here, the latest alleged protected activity

occurred in July 2014. Plaintiff was not terminated until one year later—in July 2015.

As a matter of law, this one-year passage of time is insufficient for establishing causation

for purposes of Plaintiff’s retaliation claim.

Plaintiff argues that she relies not only on temporal proximity, but also other

evidence in support of retaliation to establish causation. (See Dkt. 396 at 37). As noted

above, “[p]roof of causation can be shown either: (1) indirectly, by showing that the

protected activity was followed closely by discriminatory treatment, or through other

circumstantial evidence such as disparate treatment of fellow employees who engaged in

similar conduct; or (2) directly, through evidence of retaliatory animus directed against

the plaintiff by the defendant.” Hicks, 593 F.3d at 170 (citation omitted). The problem

with Plaintiff’s argument is that, beyond the arguments she has raised in connection with

this motion (i.e., that the jury could infer retaliatory intent), she presented no evidence

with respect to retaliatory animus at the trial, a fact the Court raised during arguments on

Defendants’ Rule 50 motion. (See Dkt. 363 at 58-60 (noting that, in addition to the lack

of temporal proximity, the underlying evidence of alleged complaints about

discrimination was “weak,” and Plaintiff’s positive performance evaluation in February

2015, undercuts her complaint of retaliation)). For example, there is no evidence that

Defendants made comments to Plaintiff or took actions against Plaintiff indicative of any

retaliatory motive. Reflective of this complete lack of evidence, Plaintiff’s counsel did

not even mention the word “retaliation” during her closing argument, choosing instead to

focus on her gender discrimination claims. (See generally, Dkt. 377). Underscoring this

fact is that, in support of this argument, Plaintiff cites no specific evidence she

purportedly relied on at trial to support her retaliation claim, referring only generally to

other arguments she raises. (See Dkt. 396 at 37 (arguing that she relied “on a wealth of

other evidence,” such as “weaknesses, implausabilities, inconsistencies, or contradictions

in . . . Absolute’s reasons; that Absolute lied in wait for an opportunity to retaliate; and

that Absolute engaged in continuing retaliation as further evidence of the causal

connection.”)).

In fact, the evidence at trial showed the opposite of retaliatory animus. First, the

evidence revealed that Defendants contemplated Plaintiff’s termination before her alleged

protected activity. Plaintiff testified that, on June 27, 2014—before Plaintiff complained

to Berardo and Olsen—Awtry told her that she was stealing and would be terminated.

(See Dkt. 360 at 62-64, 75). Further, on June 27, 2014, Awtry emailed others in

connection with the DOE investigation, asking whether they had “enough grounds for

termination.” (See Plaintiff’s Trial Exh. 73, Dkt. 382-13). Awtry’s statements asking

whether Plaintiff could be terminated occurred before she engaged in the alleged

protected activity, thereby undercutting her claim that she was terminated in retaliation

for engaging in protected activity. Morgan v. Dep’t of Motor Vehicles, No. 3:17-cv-2091

(MPS), 2020 WL 1322834, at *11 (D. Conn. Mar. 20, 2020) (“several cases in this

Circuit have rejected an inference of causation where the adverse action process began

before the plaintiff engaged in protected activity”); see also Clark Cnty. Sch. Dist., 532

U.S. at 272 (“[Employers] proceeding along lines previously contemplated, though not

yet definitively determined, is no evidence whatever of causality”).

Further, the evidence at trial revealed that Plaintiff had a favorable performance

evaluation in February 2015, following the alleged protected activity (see Dkt. 360 at

170-72 (Plaintiff’s testimony that her performance review stated that she was

“substantially exceeding expectations” or “exceeding expectations” in multiple

categories))—which also undercuts her claim that Defendants were retaliating against

her. See Powell v. Metro One Loss Prevention Servs. Grp., No. 12 Civ. 4221 (LAP)(DF),

2013 WL 12618658, at *7 (S.D.N.Y. Oct. 22, 2013) (“Courts have recognized that a

positive action, such as a promotion, by an employer between the protected activity and

the alleged adverse employment activity breaks the chain of causation necessary to

sustain a retaliation claim.”); see also Bateman v. Nexstar Media Grp., Inc., No. 20-4114,

2021 WL 4520982, at *5 (10th Cir. Oct. 4, 2021) (temporal gap between alleged

protected activity and adverse employment action was too large to create presumption of

causation, and plaintiff failed to come forward with other evidence establishing

causation; there were intervening acts, including positive performance reviews, which

undercut the plaintiff’s claim of retaliation); Dayes v. Pace Univ., 2 F. App’x 204, 208

(2d Cir. 2001) (approximately seven months between the plaintiff’s complaint about

supervisor’s conduct and his negative performance evaluation, coupled with an

intervening positive review, was not sufficient to establish causal connection between the

two events for purposes of retaliatory discharge claim); Ochoa v. N.Y. C. Dep’t of Educ.,

No. 20-cv-9014 (ALC), 2021 WL 5450343, at *4 (S.D.N.Y. Nov. 22, 2021) (passage of

three years, and in the interim, Plaintiff’s receipt of both positive and negative

performance reviews undercut causation).

Plaintiff argues that the jury could infer a causal connection between the protected

activity and her termination, based on the jury’s rejection of Defendants’ proffered

reasons for Plaintiff’s termination. Plaintiff cites Reeves v. Sanderson Plumbing, 530

U.S. 133 (2000), which Plaintiff suggests stands for the proposition that, where the

plaintiff offers evidence that disproves the employer’s proffered nondiscriminatory

reasons for a plaintiff’s termination, that itself is direct evidence of retaliatory animus,

and the plaintiff need not provide other proof. (Dkt. 396 at 32). Reeves addressed the

proof required for showing of pretext, following proof of a prima facie case of retaliation:

“Proof that the defendant’s explanation is unworthy of credence is simply one form of

circumstantial evidence that is probative of intentional discrimination. . . . Thus, a

plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s

asserted justification is false, may permit the trier of fact to conclude that the employer

unlawfully discriminated.” 530 U.S. at 147-48 (emphasis added). Reeves did not address

the requisite showing of causation needed for a prima facie case of retaliation. See, e.g.,

Rowe v. Marely Co., 233 F.3d 825, 830 (4th Cir. 2000) (“Put another way, in Reeves the

Supreme Court held that when a plaintiff establishes a prima facie employment

discrimination case and that his employer’s explanation is pretextual, this does not

automatically create a jury question, but it may do so.”); Brown v. Chertoff, No.

406CV002, 2009 WL 50163, at *8 n.2 (S.D. Ga. Jan. 7, 2009) (“Brown’s attempt to

establish his prima facie case by relying on pretext puts the cart before the horse. . . .

Nowhere does Reeves say that pretext can be used to establish the causation element of a

prima facie case or that pretext comes into the analytical framework prior to proving a

prima facie case.”), aff’d, 380 F. App’x 832 (11th Cir. 2010). Because the lack of proof

on Plaintiff’s retaliation claim stems from the failure of proof on the elements for a prima

facie case, Reeves is inapplicable.19

Plaintiff further argues that a causal connection exists because Defendants waited

for the “opportune time” to terminate Plaintiff, and also because of the escalating,

negative conduct Plaintiff endured. (Dkt. 396 at 35-37). She cites Espinal v. Goord, 558

F.3d 119 (2d Cir. 2009), where the court excused a six-month passage of time between

the dismissal of the plaintiff’s lawsuit and an allegedly retaliatory beating, including

because it was “plausible that the officers waited to exact their retaliation at an opportune

time—as when Espinal was involved in a fight with another inmate—in order to have a

ready explanation for any injuries suffered by [the plaintiff].” Id. at 129. But Plaintiff

fails to articulate why Defendants would have found that July 2015 was the “opportune

time” to terminate her—despite that she admitted having a “horrible Q3” in her August

2014 performance review, and that she failed to achieve her annual quota for 2014, at

which times they could have terminated her. (See, e.g., Plaintiff’s Trial Exh. 11, Dkt.

19 Reeves does not stand for the proposition that in all cases, a jury can infer a causal

connection between the protected activity based on the rejection of a defendant’s

proffered reasons. Rather, the jury may do so only in some cases. Even if Plaintiff had

established a prima facie case, as noted above, given the weak nature of her complaints

and the lack of temporal proximity, coupled with Plaintiff’s failure to attack Defendants’

reasons for her termination at trial, a rational trier of fact could not conclude that

retaliation was the but-for cause of her termination.

400-13 at 2). The Court thus does not find the rationale employed in Espinal—which

was premised on the fact that the defendants had a limited opportunity to carry out a

retaliatory beating—applicable here.

As to Plaintiff’s argument that she experienced escalating negative conduct,

Plaintiff points to the following: “she was yelled at by Mr. Awtry; she received a negative

performance review, and she did not receive a pay raise.” (Dkt. 396 at 37). But the

negative conduct was not escalating until Plaintiff’s termination. In fact, none of the

escalating conduct identified by Plaintiff occurred after August 2014, and Plaintiff

remained employed by Absolute for approximately ten to eleven more months, until July

2015. And, as noted above, the period following the purported escalating adverse actions

and Plaintiff’s termination was punctuated by Plaintiff’s positive performance review in

February 2015. See Ochoa, 2021 WL 5450343, at *4. In other words, under the

circumstances, the fact that Plaintiff experienced some lesser adverse actions closer in

time to the purported protected activity, but far before her eventual termination, does not

excuse the one-year time gap.

In sum, Plaintiff advances various theories as to why the Court should excuse the

over one-year delay between the alleged protected activity and her termination, but the

evidence at trial supports none of them. See, e.g., Morgan, 2020 WL 1322834, at *10

(“[W]hile the Second Circuit has at times found evidence of causation despite gaps of

several months between the protected activity and the adverse action, those cases

involved either a factual context making the defendant’s delay in retaliating plausible or

additional evidence of causation. Neither is present in this case.”). The evidence

supporting Plaintiff’s alleged protected activity was weak to non-existent, and in the

absence of any other evidence demonstrating retaliatory animus, the Court does not find

excusing the one-year passage of time is appropriate. Put simply, Plaintiff failed to

present proof—direct or circumstantial—that any alleged protected activity was the

reason for the termination of her employment. Accordingly, the Court concludes that no

rational juror could conclude that there was a causal connection between Plaintiff’s

alleged protected activity in June and July 2014, and her termination in July 2015.

Plaintiff’s final argument is that Defendants cite no case law supporting that a

court could “partially dismiss” her retaliation claim to the extent that it is based on her

termination, suggesting that there is some procedural bar preventing the Court from

concluding that proceeding to the damages phase of the trial is unnecessary. (Dkt. 396 at

38-39). Plaintiff cites no rule, case law, or other authority in support of her argument that

any such procedural bar exists, and courts have permitted retaliation claims to proceed as

to some adverse actions, but not as to others. See, e.g., Jordan v. Cnty. of Chemung, 264

F. Supp. 3d 497, 522 (W.D.N.Y. 2017) (denying the defendants’ motion for summary

judgment on the plaintiff’s First Amendment retaliation claim to the extent it was based

on the defendants’ cessation of offering the plaintiff call-in shifts, but granting summary

judgment to the extent that claim was based on her termination, since the plaintiff failed

to put forth any evidence of a causal connection between any protected speech and

termination); Lehman v. Bergmann Assocs., 11 F. Supp. 3d 408, 415-17 (W.D.N.Y. 2014)

(dismissing retaliation claim to extent it was based on constructive discharge, but

permitting retaliation claim to proceed as to the plaintiff’s demotion and placement on a

PIP). Likewise, courts have dismissed on a Rule 50(b) motion portions of a verdict,

while allowing other parts of the verdict to stand. For example, Defendants cite Clark v.

City of Tucson, No. CV-14-02543-TUC-CKJ, 2020 WL 914524 (D. Ariz. Feb. 26, 2020),

appeal dismissed, No. 20-16430, 2020 WL 6269575 (9th Cir. 2020). In that case, the

jury determined that Plaintiff faced adverse employment actions, but the court vacated

the verdict as to several of those actions, while allowing others to stand. Id. at *9-12; see

also EMI Music Marketing v. Avatar Records, Inc., 364 F. Supp. 2d 337, 344 n.10

(S.D.N.Y. 2005) (“Although the language of Rule 50(b) itself does not provide for the

possibility of allowing part of a verdict to stand while vacating another part of it, the

Court finds that it is permissible to dispose of Rule 50(b) motions in this manner.”).

Plaintiff argues that the Court must hold a new trial due to the uncertainty as to the

adverse action forming the basis for the jury’s retaliation finding, and that for the Court

“[t]o unilaterally conjure up what it thought the jury decided would require the Court to

become a fact-finder and pick and choose from the pool of evidence the result it would

prefer.” (Dkt. 418 at 4). The jury verdict form did not require the jury to select which

adverse employment action(s) supported Plaintiff’s retaliation claim—and no party made

a request that it include that information. Therefore, it is impossible to know which

adverse action(s) formed the basis for the jury’s verdict on the retaliation claim. But the

existing trial record is sufficient for Court to conclude that, as a matter of law, Plaintiff

presented insufficient evidence of causation with respect to her termination serving as an

adverse employment action on the retaliation claim. And because the only adverse action

requiring the Court to proceed to the damages phase of the trial is Plaintiff’s termination,

it would be unnecessary to do so given the lack of causation.

The Court’s final instructions to the jury stated that, for purposes of the adverse

action element, the jury need only find that the materially adverse action would not have

been taken but for the Plaintiff’s complaints of gender discrimination, and that this may

be shown through any evidence they find relevant to that analysis, including the passage

of time between the protected action and the materially adverse action. (Dkt. 377 at 146).

As explained above, the evidence on the passage of time does not support that Plaintiff’s

termination was causally related to any protected activity.

Accordingly, even if Plaintiff had engaged in protected activity and Defendants

reasonably understood her to be engaging in protected activity, so that the retaliation

verdict was not set aside in its entirety, the Court would find, to the extent the jury found

that Plaintiff’s termination was the adverse employment action or one of the adverse

employment actions, that no rational juror could conclude that Plaintiff’s termination was

in retaliation for any alleged protected activity. See Dixon v. Int’l Fed’n of Accts., 416 F.

App’x 107, 110 (2d Cir. 2011) (four months between the plaintiff’s alleged protected

activity and termination insufficient to establish a causal connection). It therefore

logically follows that there is no need for the Court to make findings with respect to

damages for lost wages.

B. Plaintiff’s Motion

The Court turns next to Plaintiff’s motion for judgment as a matter of law on her

discrimination claims. Plaintiff’s entire argument in support of her Rule 50(b) motion is

as follows:

Because the evidence supporting Plaintiff’s gender discrimination claim

was so overwhelming and because even viewing the evidence in the light

most favorable to the defendants, no reasonable or fair-minded juror could

have reached a verdict favoring the Defendants. To the extent that the

Court does not grant Plaintiff’s Rule 59 motion for the many reasons stated

above, the Court should alternatively grant Plaintiff’s Rule 50(b) motion

given the weight of the evidence.

(Dkt. 386 at 27-28; see also Dkt. 401 at 19 (argument in Plaintiff’s reply papers in

support of Rule 50(b) motion, that “because manifest injustice would exist because of the

overwhelming evidence of gender discrimination that the jury heard and Defendants’

pretextual reasons for Plaintiff’s termination, this Court should grant Plaintiff’s Rule

50(b) motion.”)).

Plaintiff’s Rule 50(b) motion is procedurally defective because she did not move

under Rule 50(a) before the case was submitted to a jury. See Perez v. Cnty. of

Rensselaer, 858 F. App’x 12, 13-14 (2d Cir. 2021). Defendants raised this issue in

response to Plaintiff’s motion. (See Dkt. 394 at 30-31). Plaintiff does not dispute that

she failed to move under Rule 50(a) before the case was submitted to the jury, but

contends that she may still move under Rule 50(b) “upon a showing of manifest

injustice.” (Dkt. 401 at 19 (citing Lore v. City of Syracuse, 670 F.3d 127, 153 (2d Cir.

2012)); see also ING Global v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 97

(2d Cir. 2014) (“The law is pellucid that a party’s failure to move under Rule 50(a) has

consequences. If that party later 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.”).

While a party who fails to move under Rule 50(a) may still move under Rule 50(b)

upon a showing of manifest injustice, Plaintiff does not even attempt in her papers to

make the requisite elevated showing (or any showing, for that matter). Plaintiff does not

offer any specific argument, or point to any specific evidence, supporting her contention

that the Court should grant her judgment as a matter of law on the gender discrimination

claims. Rather, Plaintiff states in conclusory fashion that “the evidence supporting

Plaintiff’s gender discrimination claim was so overwhelming,” and “viewing the

evidence in the light most favorable to the defendants, no reasonable or fair-minded juror

could have reached a verdict favoring the Defendants.” (Dkt. 386 at 27). Plaintiff’s

boilerplate argument lacks substance and falls woefully short of the showing required by

Rule 50. It is counsel’s responsibility—not the Court’s—to develop the arguments and to

identify the relevant evidence supporting her argument. Plaintiff’s counsel has failed to

do so here. Accordingly, Plaintiff’s motion for judgment as a matter of law is denied.20

20 Following briefing on post-trial motions, Plaintiff filed a motion for leave to file a

second amended complaint, which sought to add one new defendant, Crosspoint Capital

Partners, L.P., which purchased Absolute in July 2023. (Dkt. 404). Defendants opposed

the motion. (Dkt. 407). On November 13, 2023, Plaintiff filed a letter withdrawing her

motion to amend without prejudice (Dkt. 412), and Defendants responded, arguing that

the motion to amend should be denied or deemed withdrawn with prejudice (Dkt. 413).

To the extent Plaintiff still pursues this motion, given the Court’s ruling in Defendants’

favor, Plaintiff’s motion to amend is hereby denied as moot.

CONCLUSION

For the foregoing reasons, Defendants’ motion for judgment as a matter of law

(Dkt. 381) is granted, and Plaintiff’s motion for a new trial (Dkt. 384) is denied. The

Clerk of Court is directed to enter judgment in favor of Defendants and to close this case.

SO ORDERED.

_____________________________

ELIZABETH A. WOLFORD

Chief Judge

United States District Court

DATED: August 13, 2024

Rochester, New York