The opinion
Denson v Donald J. Trump for President, Inc.
2025 NY Slip Op 30511(U)
February 14, 2025
Supreme Court, New York County
Docket Number: Index No. 101616/2017
Judge: Francis A. Kahn III
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 32
------------------------------------X
JESSICA DENSON, INDEX NO. 101616/2017
Plaintiff,
MOTION DATE
- V -
MOTION SEQ. NO. 014 015
DONALD J. TRUMP FOR PRESIDENT, INC.,
Defendant.
DECISION + ORDER ON
MOTION
-------------------------- ------------X
HON. FRANCIS A. KAHN, Ill:
The following e-filed documents, listed by NYSCEF document number (Motion 014) 373, 374, 375, 376,
377,378,379,380,381,382,383,384,385,386,387,388,389,390,391,392,405,406,408,410,
417,418,419,420,421,422,423,424,425,426,427,428,429,430,431,432,433,434,435,436,
437,438,439,440,441,442,443,444,445,446,447,448,449,450,451,452,453,454,455,456,
457,458,460,461,462,463,464
were read on this motion to/for JUDGMENT - SUMMARY
The following e-filed documents, listed by NYSCEF document number (Motion 015) 393, 394, 395, 396,
397,398,399,400,401,402,403,404,407,409,411,412,413,414,415,416,459,465
were read on this motion to/for PARTIAL SUMMARY JUDGMENT
Upon the foregoing documents, the motions are determined as follows:
Plaintiff Jessica Denon commenced this action claiming, inter alia, that she endured a
hostile work environment, experienced sex discrimination, and faced retaliation related to her
employment with defendant, Donald J. Trump for President, Inc., a corporate entity formed to
facilitate Donald J. Trump's 2016 presidential campaign (the Campaign), resulting in her being
barred by defendant from any position on Trump for America, Inc. (the Transition Team"), the
inaugural, or any position in the Trump administration. In her supplemental amended complaint,
plaintiff seeks damages for the alleged pecuniary and emotional costs imposed on her as a result
of the Campaign's commencement of an arbitration mandated by the non-disclosure agreement
(the NOA) that she signed as a condition of her employment.
Motion sequence nos. 014 and O15 are consolidated for disposition. In motion sequence
no. 014, the Campaign moves, pursuant to CPLR 3212, for summary judgment dismissing each
claim asserted as against it in the amended complaint (NYSCEF Doc No. 337) and the amended
supplemental complaint (NYSCEF Doc No. 379).
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In motion sequence no. 015, plaintiff moves, pursuant to CPLR 3212, for an order granting
her partial summary judgment as to liability on her amended supplemental complaint for retaliation
in violation of the New York City Human Rights Law (NYCHRL), New York City Administrative
Code (Administrative Code) § 8-101, et seq., and setting the retaliation claim down for an
immediate trial on damages.
For the reasons set forth below, plaintiff's motion for summary judgment on the amended
supplemental complaint is denied. The Campaign's motion for summary judgment is granted, and
both the amended complaint and the amended supplemental complaint are dismissed.
FACTS
Background
The Campaign was a corporation that employed plaintiff and other persons to campaign
for Donald J. Trump during the 2016 Presidential Election (defendant's statement of material facts
[Doc No. 374], 11). Plaintiff was employed by the Campaign from on or about August 20, 2016
to November 10, 2016 (id., 12). During her employment, plaintiff worked in the Campaign's data
department, and then in connection with the Campaign's Hispanic engagement efforts, as the
Director of Hispanic Engagement for the Campaign (id., 1 3).
The Campaign initially hired plaintiff to work in its data department (id., 1 12). Plaintiff
worked in the Campaign's data department from on or about August 20, 2016 to September 3,
2016, a time period of approximately two weeks (id., 1 13). During the time that she worked in
the Campaign's data department, plaintiff's direct supervisor was Ron Wilson, and she was also
supervised by Camilo Sandoval (id., 1 14-15).
Plaintiff alleges that, over this two-week period, Mr. Sandoval demeaned her daily (see
plaintiff's dep [NYSCEF Doc No. 381], at 64-69), and routinely overworked her, establishing an
exhausting pattern of having her report for work early, keeping her idle, then assigning her work
at the end of the day, requiring her to work late each evening (see id. at 64-65; see also amended
complaint, 1 9). According to plaintiff, Mr. Sandoval did not treat male employees like this,
instead apologizing to them even over minor inconveniences (see plaintiff's dep, at 66-69, 75; see
also amended complaint, 1 9).
On September 1, 2016, plaintiff volunteered for a translation project for Steve Bannon, the
Campaign's CEO, to scrutinize a speech being given in Spanish by the President of Mexico (see
plaintiff's dep, at 109-112; see also amended complaint, 113). Thereafter, Mr. Bannon promoted
plaintiff from data to mobilize the Campaign's Hispanic engagement efforts (see plaintiff's dep at
109; see also Bannon dep [NYSCEF Doc No. 386], at 12-13, 17, 126-131), and on September 3,
2016, plaintiff started working on Hispanic engagement for the Campaign (DSOF, 1 18; amended
complaint, 1 14 ). Mr. Bannon then approved the title of Director of Hispanic Engagement and a
raise for plaintiff from $4,000 per month to $7,500 monthly (see plaintiff's dep, at 112; see also
Bannon dep, at 126). When she stopped working in the Campaign's data department, plaintiff no
longer reported to Mr. Sandoval, and had no further interactions with him (DSOF, 1116-17).
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In her new position, plaintiff's supervisor was Arlene Delgado, to whom she reported for
approximately three weeks (id., ,i,i 20-21 ). On October 5, 2016, plaintiff agreed to continue
working on Hispanic engagement on the West Coast (id., ,i 22). Starting in or around mid-October
2016, plaintiff continued to work on Hispanic engagement on the West Coast for approximately
two weeks (id., ,i 23). i
Plaintiff alleges that, after the election, Bannon praised her work and offered her a job on
the Transition Team, but that others, acting on the Campaign's behalf, undermined the Transition
Team offer (see plaintiff's dep, at 363-373). According to plaintiff, Mr. Sandoval, who was
motivated by plaintiff's sex, made and encouraged others to make numerous wild, uninvestigated,
and unsubstantiated complaints about her, using his position on the Campaign's leadership team
to influence others to take damaging adverse actions against her (see amended complaint, ,i 20).
These included, among others, Lucia Castellano, who, as the Campaign's Director of Human
Resources, specifically directed the Transition Team, inaugural, and Administration not to hire
plaintiff for any role (see id., ,i 42; see also plaintiff's dep, at 363-373).
Specifically, plaintiff alleges that Sandoval: (1) started a rumor that she was responsible
for the October 2016 leak of Donald Trump's taxes; (2) attempted to have another staffer be
complicit in theft of her personal laptop and personal files that she had left at the home of a friend
that she had worked with in the data department for safe keeping; (3) blocked her access to the
national supporter database that she used to support Hispanic coalitions; and (4) cyberbullied her
by making multiple unauthorized attempts to reset the password on the Spanish Twitter account
solely authorized to her by campaign officials and registered to her phone (see amended complaint,
iJ 21 ).
Plaintiff also alleges that she complained about Mr. Sandoval's behavior, but that the
Campaign failed to investigate or take any remedial action (see plaintiff's dep, at 192). More
specifically, she alleges that, during a meeting with Ms. Castellano on October 5, 2016, she
described her history with the Campaign and Mr. Sandoval's alleged misconduct toward her,
including stating she believed Mr. Sandoval was taking these actions against her because of sex
(see id. at 196-197, 200-201; see also amended complaint, ,i,i 25-26). She alleges that, however,
she left the meeting feeling that the issues surrounding Mr. Sandoval's conduct were unaddressed
(see plaintiff's dep, at 214), and that retaliation soon followed after the meeting.
According to plaintiff, this retaliation consisted of, inter alia: narrowing her scope of work
to one minor task and banishing her to Colorado; repeatedly changing the travel arrangements
previously agreed upon; causing new superiors to prohibit her from attending campaign events;
disabling her ability to perform even the limited task she had been reduced to by permitting
Sandoval to continue to block her access to the supporter database; denying her permission to join
the campaign's women's tour; failing to investigate the disappearance of a laptop charger that may
have implicated one or more individuals in unauthorized access to her personal laptop in Trump
Tower; and barring her, after the election, from any future employment on President Trump's
transition team or in his administration, notwithstanding Mr. Bannon's prior job offer (see
amended complaint, ,i,i 28, 33, 34, 42).
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Plaintiffs employment with the Campaign ended on November 10, 2016, two days after
the 2016 Presidential Election on November 8, 2016 (DSOF, ~ 24 ). The majority of the
Campaign's workforce stopped working for the Campaign on or about November 10, 2016 (id., ,i l·I
25).
Plaintiff alleges that, on November 22, 2016, Mr. Bannon offered her a job on the
Transition Team in an email copied to a leading member of the transition, who confirmed that they
would "find the right fit" for her (amended complaint, ,i 38). She further alleges that, however,
the offer never materialized because the Campaign successfully blocked her from assuming any
future position (id., ,i~ 38-39, 42).
Procedural History
Plaintiff filed this action on November 14, 2017 (plaintiff's statement of facts [NYSCEF
Doc No. 403], ,i 1). The next month, the Campaign filed a demand for arbitration (NYSCEF Doc
No. 254) against plaintiff seeking $1.5 million in damages (the Arbitration), pursuant to the terms
of the NDA (NYSCEF Doc No. 234) that plaintiff executed as a condition of her employment.
The NDA contained non-disclosure and non-disparagement provisions which prohibited her from
disclosing, disseminating or publishing any confidential information unfavorable to Donald J.
Trump, his family or his businesses. Further, the agreement provided that she could not demean
or disparage Trump, his family or his businesses publicly. At the sole election of defendant, any
dispute arising under or relating to the NDA was to be resolved by binding arbitration.
In the demand, the Campaign stated that plaintiff "breached confidentiality and non-
disparagement obligations ... by publishing certain confidential information and disparaging
statements in connection with a lawsuit she filed against claimant in New York Supreme Court."
Plaintiff did not participate in the arbitration, and instead, brought a suit in federal court for a
declaration that the NDA was void and unenforceable as against public policy (PSOF, ,i 5).
By decision dated December 11, 2018, the arbitrator found the NDA enforceable, and
issued a final award of $49,507.64 (the Award) (id., ,i 7). On July 8, 2010, Justice Arlene Bluth
confirmed the Award (id., ,i 8). On July 22, 2019, the court issued a judgment for $52,229.88 (the
Judgment) (id., ,i 9).
Plaintiff appealed to the Appellate Division, First Department, which vacated the Award
and the Judgment, holding that it was "partly made in violation of public policy and otherwise in
excess of the arbitrator's authority" (Denson v Donald J Trump for President, Inc., 180 AD3d
446, 446 [1 st Dept 2020]).
Subsequently, on May 29, 2020, plaintiff moved for leave to supplement her complaint in
this action to add a claim for retaliation, based on the Campaign's action in bringing the
Arbitration, obtaining the Award and Judgment, and pursuing execution of that Judgment against
plaintiff. On January 26, 2021, the court granted the motion (PSOF, ,i15). On January 28, 2021,
plaintiff filed the supplemental amended complaint, which formally added a claim for retaliation
in violation of NYCHRL § 8-107 (7).
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Thereafter, plaintiff commenced a class action suit against defendant in New York State
Supreme Court in which she sought a declaratory judgment on behalf of all class members that the
employment agreement containing the NDA was void. It further sought an injunction prohibiting
enforcement of the NOA. That action was removed to federal court (see Denson v Donald J
Trump for President, Inc., 20-CV-4737 [PGG] [SD NY 2020]). In that action, Judge Paul G.
Gardephe denied defendant's motion to dismiss, and granted plaintiffs motion for summary
judgment to the extent that the NOA within the employment agreement was declared invalid and
unenforceable as to plaintiff. Judge Gardephe held that neither the non-disclosure nor the non-
disparagement clauses were sufficiently definite to be enforceable (Denson v Donald J Trump for
President, Inc., 530 F Supp 3d 412,437 [SONY 2021]).
Plaintiff initially moved for partial summary judgment on the supplemental amended
complaint in motion sequence no. 010 (see NYSCEF Doc Nos. 218-248). The court denied the
motion without prejudice on technical grounds, because plaintiff failed to submit a statement of
undisputed facts. On June 22, 2021, before the parties conducted any depositions, plaintiff filed
her second summary judgment motion (motion sequence no. 011) on her post-employment
retaliation claim under the NYCHRL (see NYSCEF Doc Nos. 249-273, 308, 311).
The first principal argument that plaintiff raised on the motion was that both the Appellate
Division's decision vacating the Award and the federal decision invalidating the NOA collaterally
estopped the Campaign from arguing that it had not retaliated against plaintiff. This court
disagreed, finding that precise issue of retaliation under NYCHRL § 8-107 (7) had not been
litigated in the prior proceedings (see Denson v Donald J Trump for President, Inc., 2021 NY Slip
Op 32095[U], * 3-4 [Sup Ct, NY County 2021]). The First Department affirmed (see Denson v
Donald J Trump for President, Inc., 206 AD3d 512, 513 [l5t Dept 2022] [finding that neither
decision "has preclusive effect," because "(n)either decision made any findings with respect to the
issue of defendant's motives for pursuing arbitration, and the retaliation claim did not arise solely
from the transactions at issue in those prior proceedings"]).
The second principal argument was that plaintiff had established, based on undisputed
facts, all of the elements of a retaliation claim under the NYCHRL as a matter of law, and that the
Campaign failed to lay bare any proof of a legitimate non-retaliatory reason for bringing a $1.5
million arbitration against Ms. Denson. In opposition to the motion, the Campaign proffered the
July 19, 2021, affidavit of Michael S. Glassner, its former chief operating officer who was
personally involved in the decision to initiate the arbitration. In his affidavit (NYSCEF Doc No.
264), Mr. Glassner asserted that that the Campaign had a legitimate, good faith belief that plaintiff
had purposefully and unnecessarily pleaded certain allegations in her initial underlying pleading
that violated her then-valid confidentiality and non-disparagement obligations.
This court also found that plaintiff had failed to make out a prima case for retaliation,
holding that:
"Plaintiffs reliance on Defendant's arbitration demand as self-evident proof of
conduct which was reasonably likely to deter Plaintiff [from engaging in a protected
activity] is ... unavailing. Defendant's right to proceed to arbitration was agreed to
by both parties, and this Court as well as the District Court both endorsed
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Defendant's choice to proceed to arbitration. In sum, the submitted evidence does
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not demonstrate prima facie every element of Plaintiffs retaliation cause of action"
(id. at* 4).
The First Department affirmed, holding that:
"The record fails to demonstrate conclusively that defendant commenced
arbitration proceedings pursuant to the parties' non-disclosure, non-disparagement
agreement (NDA) in retaliation for plaintiffs filing of a sex discrimination action.
Defendant submitted its chief operating officer's affidavit averring that it had a
legitimate basis for compelling arbitration, i.e., that it in good faith believed
plaintiff violated the NDA by making factual allegations that exceeded the facts
necessary to state a viable claim, and plaintiff failed to submit evidence showing
that this proffered reason was pretextual"
(206 AD3d at 512 [Pt Dept 2022] [internal citations omitted]).
On January 9, 2023, plaintiff deposed Mr. Glassner (see NYSCEF Doc No. 397). Similar
to what he attested to in his prior affidavit, Mr. Glassner testified at his deposition that he believed
that plaintiff had purposefully pleaded sensationalist allegations in her complaint for media
consumption to embarrass the Campaign, and to make it appear as if the Campaign was
disorganized, chaotic, and unprofessional. Mr. Glassner also testified that he believed that plaintiff
had violated her confidentiality and non-disparagement obligations by unnecessarily disclosing
information that had no bearing on her discrimination claims, such as information pertaining to
internal and otherwise private Campaign operations, communications, hiring and personnel
decisions, and Secret Service activity (see id.).
DISCUSSION
Defendant's Motion for Summary Judgment Dismissing the Amended Complaint
"' [T]he proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the
absence of any material issues of fact"' (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993] [citation
omitted]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The burden is a
heavy one: the facts must be viewed in the light most favorable to the non-moving party and every
available inference must be drawn in the non-moving party's favor (Sherman v New York State
ThruwayAuth., 27 NY3d 1019, 1021 [2016]). "Failure to make such showing requires denial of
the motion, regardless of the sufficiency of the opposing papers" (Wine grad, 64 NY2d at 853; see
also Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982 [1993]).
The party opposing summary judgment has the burden of presenting evidentiary facts
sufficient to raise triable issues of fact (Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980];
CitiFinancial Co. [DE] v McKinney, 27 AD3d 224, 226 [1st Dept 2006]). Summary judgment
may be granted only when it is clear that no triable issues of fact exist (Alvarez v Prospect Hmp.,
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68 NY2d 320, 324 [1986]), and "is inappropriate in any case where there are material issues of
fact in dispute or where more than one conclusion may be drawn from the established facts"
(Friends a/Thayer Lake LLC v Brown, 27 NY3d 1039, 1043 [2016]; see also Sillman v Twentieth
Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Tronlone v Lac d'Amiante Du Quebec, 297 if
AD2d 528, 528-529 [1 st Dept 2002], affd 99 NY2d 647 [2003]).
This court finds that the Campaign has established its entitlement to summary judgment
dismissing all of the causes asserted as against it in the amended complaint, and that plaintiff has
failed to raise any triable issues of material fact.
1. Defamation
In support of her claim for defamation, plaintiff alleges that Campaign staffers defamed
her by stating that she:
1) Improperly rummaged through the offices of Campaign leaders;
2) Was a "bitch" who was "out of control;"
3) Was dangerous and a threat to the Campaign;
4) Met with donors without authorization;
5) Leaked Trump's tax records to the media;
6) "Threatened to call the media;"
7) Was "shopping around documents from the Campaign;" and
8) Wasted campaign money.
(seeplaintiff'sdep,at77-78, 156-158, 161-162, 170-171, 178-179, 183,384; see also
amended complaint,,, 4, 6, 21, 26, 29, 40).
The statute of limitations for defamation is one year (see CPLR 215 [3]; Jacobson v Seddio,
225 AD3d 448, 450 [1 st Dept 2024]). However, as plaintiff admitted at her deposition, all of the
alleged statements underlying her defamation claims occurred in October 2016, which was more
than one year prior to plaintiff's commencement of this lawsuit on November 14, 2017 (see
plaintiff's dep, at 190, 200, 384; see e.g. Stringer v Kim, 226 AD3d 607, 607-608 [1 st Dept 2024]
["There is no dispute that defendant's original statements concerning plaintiff were made in April
2021, which is more than a year before this action was commenced, and therefore fall outside the
statute of limitations pursuant to CPLR 215 (3)"]; Smulyan v New York Liquidation Bur., 158
AD3d 456, 457 [1 st Dept 2018] [affirming dismissal of defamation claim as time-barred "to the
extent it is based on alleged instances of defamation that occurred before November 13, 2014-
more than one year before plaintiff commenced this action"]). As such, plaintiff's defamation
claims are unequivocally time-barred.
. Moreover, plaintiff's claims are principally based on paraphrased hearsay statements,
which she purports to have heard secondhand (see plaintiff's dep at 156-158, 161-162, 167, 178-
_179, _183). In~ee?, plaintiff further admitted at her deposition that she cannot even properly
identify the maJonty of the alleged statements, much less the specific time, place, and manner of
these alleged state?1~n~s (see ~laintiff's dep at 156-158, 161-162, 167, 178-179, 183). Under
CPLR 3016 (a), this 1s msuffic1ent to meet the specificity requirements for a defamation claim to
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survive dismissal on a motion to dismiss, or a motion for summary judgment (see e.g. Manas v
I
VMS Assoc., LLC, 53 AD3d 451, 454 [151 Dept 2008] [affirming dismissal of defamation claim
where "plaintiff appear[ ed] to have paraphrased the allegedly defamatory statements"]; Khan v
Reade, 7 AD3d 311,312 [151 Dept 2004] [defamation claim should have been dismissed "inasmuch J
as plaintiff failed to allege the precise words allegedly giving rise to defamation and failed to allege Ii
in the complaint the time, place and manner of publication"]; see also CS! Group, LLP v Harper,
153 AD3d 1314, 1320 [2d Dept 2017] [lower court should have granted defendants summary
judgment on plaintiffs' defamation claim because they "did not set forth the actual words
complained of']; Naderi v North Shore-Long Is. Jewish Health Sys., 135 AD3d 619,620 [15 1 Dept
2016] ["Plaintiffs defamation claims allege nothing more than nonspecific defamatory rumors,
which do not amount to actionable defamation"]).
In her response to the motion, plaintiff does not dispute that all of the alleged defamatory
statements that she identified in her amended complaint and at her deposition were made more
than one year prior to her commencement of this lawsuit, or that most of these alleged statements
are paraphrased hearsay statements that she heard secondhand. Rather, plaintiff now premises her
defamation claims on the assertions that (1) Ms. Castellano defamed her in December 2016 when
she stated to the Transition Team that plaintiff should not be hired by the Transition Team or the
federal government, i.e., less than one year before she filed her action, and (2) her defamation
claims as a whole should be governed by the three-year statute of limitations for tortious
interference claims. The court rejects both arguments.
As an initial matter, the three-year limitations period for tortious interference claims cannot
be applied to the alleged defamatory statements that plaintiff references in her complaint and at
deposition because it is undisputed that all these purported statements were made in October 2016
(see plaintiffs dep, at 190, 200, 384). As such, these alleged statements could not have
"interfered" with any "specific business relationship" that plaintiff had with the Transition Team
(or the federal government) because Donald J. Trump had not even won the 2016 Presidential
Election at the time they were made (see e.g. Pasqualini v Mortgage!T, Inc., 498 F Supp 2d 659,
670 [SD NY 2007] ['"New York Courts have consistently ruled that a claim which is ostensibly
based upon the intentional torts of interference with advantageous or contractual relations, but
which alleges injury to reputation, is a disguised defamation claim and subject to a one-year
limitations period"'] [citation omitted]; Dobies v Brefka, 273 AD2d 776, 778 [3d Dept 2000] ["we
decline to reinstate the claim for tortious interference with economic advantage in the absence of
an alleged act of interference with a contract or business relationship distinct from the general
declaration of injury to reputation included in plaintiffs defamation claims"]; see also Matter of
Entertainment Partners Group v Davis, 198 AD2d 63, 64 [l st Dept 1993] [lower court "properly
rejected plaintiffs attempt to bring a defamation action against the defendants ... in the guise of an
economic tort, as well as the plaintiffs attempt to cast its defamation claim as tortious interference
with business relations ... since it is well settled that a plaintiff may not circumvent the one-year
statute of limitations applicable to defamation actions (CPLR 215 [3]) by denominating the action
as one for intentional interference with economic relations ... if, in fact, the claim seeks redress for
injury to reputation"]; Ramsay v Mary Imogene Bassett Hosp., 113 AD2d 149, 150-51 [3d Dept
1985] [negative job references provided to area hospitals in connection with doctor's application
for employment constituted defamation rather than interference with prospective economic
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advantage]). Thus, plaintiff cannot recast her purported defamation claims as a tortious
interference claim to try to take advantage of an extended limitations period. I,
In addition, plaintiff presents no evidence that any of the alleged defamatory statements
that she identified in her complaint and at her deposition were ever communicated to the Transition
Team (or the federal government), such that plaintiff could assert that any of the statements
"interfered" with any such purported business relationships.
With respect to Ms. Castellano, plaintiff references two emails written to Brian Jack of the
Transition Team. On December 2, 2016, Ms. Castellano wrote: "Jessica is NOT ever to be hired
onto transition, inaugural or brought to DC!" (see NYSCEF Doc No. 452). On December 29,
2016, Ms. Castellano again wrote to Mr. Jack, stating that "This name should NEVER be hired by
the Administration anywhere!!" (see NYSCEF Doc No. 454 [capitals in original]).
However, Ms. Castellano's statements to the Transition Team are not actionable for two
distinct reasons. First, none of them contain any false statement of fact-they are non-actionable
declarations (see Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [Pt Dept 2014)]
["Defamation is the making of a false statement which tends to expose the plaintiff to public
contempt, ridicule, aversion or disgrace]; see e.g. Ross v State Univ. ofNew York, 166 AD3d 1034,
1035 [2d Dept 2018] ["The claim failed to set forth a potentially meritorious defamation cause of
action, since the statements in the emails upon which the defamation allegations are based-stating
that the claimant was not allowed to supervise residents-were nonactionable directives"]; Wilcox
v Newark Val. Cent. School Dist., 74 AD3d 1558, 1561 [3d Dept 2010] [dismissing defamation
claim premised on letter directing plaintiff to "refrain from any one-on-one conversations with
students" because "(t)his utterance was not a statement of fact or opinion about plaintiff, but rather
a directive issued to plaintiff by her superior"]; Chang v Fa-Yun, 265 AD2d 265, 265 [Pt Dept
1999] ['"The mere statement of discharge or termination from employment, even if untrue, does
not constitute libel'"] [citation omitted]).
Second, Ms. Castellano's statements are qualifiedly privileged as a communication
between a former employer and prospective employer (see e.g. Mark v Brookdale Univ. Hosp. &
Med. Ctr., 2005 WL 1521185, * 23, 2005 US Dist LEXIS 12584, * 63 [ED NY 2005]
["Communications between a plaintiff's former employer and the plaintiffs prospective employer
cannot support a cause of action to recover damages for defamation because New York recognizes
a qualified privilege with respect to communications between former and prospective employers
as to the character of a former employee even though such information may prove ultimately to be
inaccurate"] [citations, quotation marks and alterations omitted]; Apionishev v Columbia Univ. in
NY, 1012 WL 208998, * 10, 2012 US Dist LEXIS 8160, * 10 [SD NY 2012] [dismissing
defamation claims, in part, because the statements "amount to no more than a former employer's
protected opinion regarding an employer's performance and the cause of his termination"];
Serratore v American Port Servs., 293 AD2d 464, 465 [2d Dept 2002] ["The responses of the
plaintiff's former employer to a questionnaire from the plaintiff's prospective employer cannot
support a cause of action to recover damages for defamation"]).
For all these reasons, plaintiffs defamation claims fail as a matter of law, and must be
dismissed.
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3. Intentional and Negligent Infliction of Emotional Distress
In the amended complaint, plaintiff does not detail the behavior underlying her claims for
negligent and intentional infliction of emotional distress, other than by referring to the alleged
defamation by campaign staffers (see amended complaint, ,r 41 ["By reason of the facts and
circumstances stated above, the campaign caused Denson severe emotional distress [by] ...
derailing her professional life and defaming her character"]). As such, both causes of action are
duplicative of the defamation claim because they are based upon the exact same conduct as that
alleged in the defamation claim - the allegedly defamatory statement made by campaign staffers
about plaintiff. New York courts routinely dismiss such derivative claims where, as here, they
"fall within the ambit of other traditional tort liability, namely, [a] cause of action sounding in
defamation" (Fleischer v NYP Holdings, Inc., 104 AD3d 536,538 [dismissing "cause[] of action
alleging ... intentional infliction of emotional distress against each of the defendants ... as
duplicative"]; see also Matthaus v Hadjedj, 148 AD3d 425, 425 [l51 Dept 2017] ["Supreme Court
properly granted defendant's motion to dismiss plaintiffs claim for intentional infliction of
emotional distress as duplicative of her defamation cause of action"]; Bacon v Nygard, 140 AD3d
577,578 [!51 Dept 2016] [affirming dismissal of intentional infliction claim "since the underlying
allegations fall within the ambit of the defamation causes of action"]; Stanley v City of New York,
71 Misc 3d 171, 181 [Sup Ct, NY County 2020] ["As an initial matter, causes of action for
intentional and negligent infliction of emotional distress are not permitted if they essentially
duplicate tort ... causes of action"]).
Indeed, as plaintiff fails to address defendant's arguments that these claims fall as a matter
of law, plaintiff abandoned these causes of action (see Jamie Ng v NYU Langone Med. Ctr., 157
AD3d 549, 550 [l51 Dept 2018] ["Plaintiffs failure to oppose so much of the motion as sought
dismissal of the lack of informed consent claim, constituted an abandonment of the claim"]; Saidin
v Negron, 136 AD3d 458, 459, [151 Dept 2016] ["Plaintiff abandoned his claim against the
individual police officer by failing to oppose that part of the motion to dismiss the claim as against
him"]; see also Gary v Flair Beverage Corp., 60 AD3d 413,413 [l51 Dept 2009]).
As such, both of these causes of action are dismissed.
4. Tortious Interference with Prospective Economic Advantage
The "tort of interference with business relations applies to those situations where the third
party would have entered into or extended a contractual relationship with plaintiff but for the
intentional and wrongful acts of the defendant" (WFB Telecom., Inc. v NYNEX Corp., 188 AD2d
257, 257 [l st Dept 1992]). "A claim for tortious interference with prospective business advantage
must allege that: (a) the plaintiff had business relations with a third party; (b) the defendant
interfered with those business relations; (c) the defendant acted with the sole purpose of harming
the plaintiff or by using unlawful means; and (d) there was resulting injury to the business I
relationship" (Thome v Alexander & Louisa Calder Found., 70 AD3d 88, 108 [1 st Dept 2009]).
Plaintiff premises her claim for tortious interference with prospective economic advantage
on the assertion that the Campaign retaliated against her for making complaints of discrimination
by interfering with her ability to be hired by the federal government for a position at the White
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House and the Transition Team (see amended complaint, ,i,i 6, 39, 42). Although plaintiff asserts
that Mr. Bannon personally made her an offer of employment, in fact, the evidence in the record
reveals that plaintiff never received any actual offer of employment from the federal government
or the Transition Team (see plaintiffs dep, at 357-359, 371 [testifying that she was never provided
with an offer letter or terms and conditions of employment, and was never informed of even the
type of work that she would be doing, or how much she would be paid]; see also Bannon dep, at
28-30). Rather, both plaintiff and Mr. Bannon testified that Mr. Bannon merely connected plaintiff
with a Transition Team representative by email (see plaintiffs dep, at 358-362; Bannon dep, at
27-32).
This evidence is insufficient to support a tortious interference claim (see e.g. Murphy v City
of New York, 59 AD3d 301,301 [l5t Dept 2009] [affirming dismissal oftortious interference claim
finding, among other things, that plaintiff "failed to demonstrate the existence of a job offer" that
defendants purportedly interfered with] [citations omitted]; see also Brook v Peconic Bay Med.
Ctr., 213 AD3d 448, 448 [1 st Dept 2023] ["Plaintiff failed to raise an issue of fact as to the existence
of a job offer that would have been extended to him but for defendant's conduct; accordingly, the
claim alleging tortious interference with prospective economic advantage was properly
dismissed"]; Miller v Livanis, 189 AD3d 446, 447 [1 st Dept 2020] ["The Court also properly
dismissed plaintiffs claim for tortious interference with prospective business relations" because
"(w)hile plaintiff argues that Livanis did interfere (with a job prospect), by directly contacting the
Principal's Program at Hunter College so that he would lose an opportunity to become an
administrator, such vague aspirations of future employment are insufficient to meet this
standard"]).
In any event, plaintiff cannot premise her tortious interference claim on Ms. Castellano's
statements to the Transition Team because, as demonstrated above, these statements are not
actionable as a matter of law and, therefore, cannot form the basis of an actionable tortious
interference claim (see e.g. Sabharwal & Finkel, LLC v Sorrell, 117 AD3d 437, 438 [l51 Dept
2014] ["Dismissal of the defamation claim also requires dismissal of the tortious interference
claim, since that is the basis for the allegation that defendant's conduct was 'otherwise unlawful'"]
[citation omitted]).
5. Hostile Work Environment
Plaintiff brings her claim for hostile work environment under the NYCHRL, which
provides, in relevant part, that "[i]t shall be an unlawful discriminatory practice ... [for] an
employer or employee or agent thereof, because of the actual or perceived ... gender ... of any
person ... to discriminate against any such person in compensation or in terms, conditions or
privileges of employment" (Administrative Code§ 8-107 [1] [a] [3]). Plaintiff bases this claim on
the behaviour of Mr. Sandoval, who, she alleges "targeted the plaintiff because she was a woman"
(amended complaint, ,i 4; see also id., ,i 31 ["all of the actions taken against her by Sandoval, were
motivated by the fact that she was a woman"]). She further alleges that "[t]he campaign
compounded a slander crusade executed by Sandoval against Denson, including the claim that she
was re~ponsible f~r ~n il~egal leak of Donald Trump's taxes, and extended his assault, step-by-step
thwartmg and ehmmatmg her very ability to perform the tasks she had been given and
perpetuating a climate of fear and terror for the extent of her employment and beyond" (id.):
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'"[U]nder the [NYCHRL], liability for a harassment/hostile work environment claim is
proved where a person provides that he or she was treated less well than other employees because
of the relevant characteristic"' (Benitez v Jamaica Hosp. Med. Ctr., 230 AD3d 1284, 1285 [2d
Dept 2024] [citation omitted]; see also Reichman v City of New York, 79 AD3d 1115, 1118 [2d
Dept 2020]). "In other words, all that is required to sustain a NYCHRL "hostile work environment
claim" is "unequal treatment" based upon membership in a protected class .... Questions of
"severity" or "pervasiveness" go to damages only-not to liability" (Fattoruso v Hilton Grand
Vacations Co., LLC, 873 F Supp 2d 569, 578 [SD NY 2012], affd 525 F Appx 26 [2d Cir 2013]).
The conduct alleged must, however, exceed "what a reasonable victim of discrimination
would consider 'petty slights and trivial inconveniences"' (Williams v New York City Hous. Auth.,
61 AD3d 62, 80 [1 st Dept 2009] [citation omitted]; accord Parham v City of New York, 84 Misc
3d 1204[A], 2024 NY Slip Op 51360[U], * 7 [Sup Ct, NY County 2024] ["Isolated remarks that a
reasonable person would consider 'nothing more than petty slights and trivial inconveniences'
cannot support a hostile work environment claim under the NYCHRL"], quoting Ji Sun Jennifer
Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 26 [Pt Dept 2014]; see e.g. Pitter-
Green v NYU Langone Med. Ctr., 223 AD3d 576, 579 [1 st Dept 2024] ["plaintiff has not shown
how the alleged offensive remark or purportedly discriminatory conduct indicative of a hostile
work environment amount to more than 'petty slights or trivial inconveniences' that would
demonstrate that she was treated less well than other employees because of her protected
characteristics"] [citation omitted]). As such, "mere personality conflicts" will not suffice to
establish a hostile work environment (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 309
[2004]). "At the summary judgment stage, judgment should normally be denied to a defendant if
there exist triable issues of fact as to whether such conduct occurred" (Williams, 61 AD3d at 79).
Plaintiff's hostile work environment claims under the NYCHRL must be dismissed
because she fails to present any evidence that any Campaign workers ever treated her less
favorably than other employees because of her gender, beyond her own speculative assertions (see
e.g. Ellison v Chartis Claims, Inc., 178 AD3d 665, 669 [2d Dept 2019] [affirming dismissal of
race discrimination claim under the NYCHRL because "(t)he plaintiff offered nothing but
speculation that any of the defendants' challenged actions were motivated, even in part, by
unlawful discrimination or retaliation, and such speculation is insufficient to defeat summary
judgment"]; Suri v Grey Global Group, Inc., 164 AD3d 108, 135 [1 st Dept 2018] [rejecting
plaintiff's "speculative and conclusory" assertion that she was denied a promotion for
discriminatory reasons]; see generally Dickerson v Health Mgt. Corp. ofAm., 21 AD3d 326, 329
[1 st Dept 2005] ["Conclusory allegations of discrimination are insufficient to defeat a motion for
summary judgment"]).
Here, plaintiff's assertions of harassment pertain primarily to her former supervisor,
Camilo Sandoval, who plaintiff reported to for less than two weeks (plaintiff's dep, at 113).
However, these assertions consist of nothing more than alleged petty and trivial conduct on the
part of Mr. Sandoval, which plaintiff merely speculates was related to her gender. For instance,
plaintiff asserts that, soon after she was promoted out of Mr. Sandoval's department, Mr. Sandoval
asked plai~tiff's direct report, Ron Wilson, the following question in plaintiff's presence: "why
are you lettmg your sheep wander?" (id. at 73- 74). Plaintiff further asserts that Mr. Sandoval also
told her: "I hired you and I can fire you" (id. at 73-74, 98-100). Neither of these remarks are
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gender-based on their face and, even if they were, they are not actionable, as a reasonable person
would consider them nothing more than petty slights and trivial inconveniences (see e.g. Edun v
Envirosell, Inc., 2019 NY Misc LEXIS 2491, * 17-18 [Sup Ct, NY County 2019] [dismissing
hostile work environment claims under the NYCHRL, finding that references to plaintiff as a
"rookie" and "lady;" asking plaintiff whether she was "going to join a terrorist organization;" and
asking plaintiff whether she was sending money to her parents in Mauritius so they can "keep
coconuts on the table" were "petty slights" and "stray remarks"]; Buchwald v Silverman Shin &
Bryne PLLC, Index No. 155828/2013 [Sup Ct, NY County, July 20, 2016], a.ffd 149 AD3d 560
[15 1 Dept 2017] [affirming dismissal of hostile work environment claim under the NYCHRL,
deeming supervisor's repeated references to plaintiff as a "nut," "nutjob," and "lunatic" over a
five-month period to be "petty slights"]).
Plaintiff also asserts that, after her promotion, Mr. Sandoval "laid down" on a couch "with
his crouch pointed towards [her]" (plaintiffs dep, at 96-98). However, plaintiff admits that Mr.
Sandoval was not in a "sexual position" (id.), and acknowledges that Mr. Sandoval did not make
any sexually inappropriate comments to her while he was on the couch (or at any other time during
her employment with the Campaign) (id.). Accordingly, there is no evidence to support plaintiffs
speculative assertions that Mr. Sandoval's conduct was gender-based in any way, and, even it was,
it was also far too trivial to constitute a hostile work environment as a matter oflaw (see e.g. Adams
v City of New York, 837 F Supp 2d 108, 128-29 [ED NY 2011] [female correction officer's claim
that her male supervisor invited her into his office while he was shirtless and with his pants
unzipped was "boorish and offensive," but too trivial and petty to constitute a hostile work
environment under the NYCHRL]; Magnani v Smith & Laquercia, LLP, 701 F Supp 2d 497, 506
[SD NY 201 0] [plaintiff could not sustain sexual harassment claim under the NYCHRL where her
supervisor "(told her) a crude anecdote from his sex life with another woman, and occasionally
refer(red) to (plaintiff) as voluptuous and knock(ed) her knee"]), affd 483 Fed Appx 613 [2d Cir
2012]).
Plaintiff also asserts that Stephen Miller made a "condescending" comment to her while
she was sitting at a table on an airplane, namely, that she was not permitted to sit at the table
because it was a "workspace" (plaintiffs dep, at 102-106). However, plaintiff admits that she does
not know why Mr. Miller made this comment to her, nor could she explain how this comment was
directed towards her gender, especially considering that the comment was only directed to her even
though she was sitting next to two other women at the time (id.). Moreover, this petty and trivial
comment is also non-actionable (see Edun v Envirosell, Inc., 2019 NY Misc LEXIS 2491, at * 17-
18; Buchwaldv Silverman Shin & Bryne PLLC, Index No. 155828/2013).
Plaintiffs speculative assertions of gender-based animus on the part of Mr. Sandoval are
further undermined by her own admissions. For example: (1) plaintiffs assertion that Mr.
Sandoval harassed her during her interview because of her gender is refuted by her admission that
she has no idea how Mr. Sandoval treated men during their interviews (see plaintiffs dep, at 44,
~0; (2) plaintiffs ass~rti?n that Mr. Sandoval harassed her with work tasks because of her gender
1s refuted by her adm1ss1ons that she has no idea how Mr. Sandoval treated her male colleagues,
and that Mr. Sandoval treated her coworker Elizabeth Pipko with "a lot of respect" (see id. at 50
67, 74-75). Plaintiff also admits that she believed Mr. Sandoval's purported conduct towards he;
was because of his '•insane jealousy" about her promotion (see id. at 85-89, 152). As such, this
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II
was clearly not "gender discrimination" (see e.g. Ramirez v Michael Cetta Inc., 2020 WL 5910551,
* l 0, 2020 US Dist. LEXIS 180619, * 28 [SD NY 2020) ("[f]urther hindering plaintiff's ability to
prove that (harasser's) facially sex-neutral conduct was motivated by a gender-based
discriminatory intent is plaintiff's admission that her only female coworker is not subject to the
same time of alleged mistreatment and harassment from (the harasser)"; see also Pitter-Green.,
223 AD3d at 578 [granting employer's summary judgment motion on ground that plaintiff failed
to "demonstrate that she was treated less well than other employees because of her protected
characteristics"]; Batilo v Mary Manning Walsh Nursing Home Co., Inc., 2018 NY Misc LEXIS
4964, * 34 [Sup Ct, NY County 2018] [dismissing discrimination claims under the NYCHRL,
finding that plaintiff failed to raise a "triable issue of fact that she was treated less well than
similarly situated employees outside of her protected class"]).
Plaintiff also relies upon an email in which Mr. Sandoval privately referred to plaintiff as
a "bitch" who was "out of control" (see 10/9/16 email from Sandoval to Miller [NYSCEF Doc No.
3 88]), to show that all of Mr. Sandoval's other gender-neutral conduct must have been motivated
by gender-based animus. However, this statement cannot support a hostile work environment
claim as a matter of law because plaintiff admits that she was not even aware of the statement until
several years after she stopped working for the Campaign (plaintiff's dep, at 77-78; see e.g. Perez
v City of New York, 2020 WL 1272530, * 18, n 9, 2020 US Dist LEXIS 46906, * 39, n 9 [SD NY
2020] [because "there is no evidence that [internal] memorandum was ever shown to Perez,"
"(t)his letter therefore cannot support a hostile work environment claim"; Thomas v New York City
Health & Hasps. Corp., 2004 WL 1962074, * 12, 2004 US Dist LEXIS 17694, * 40 [SD NY 2004]
["there must be evidence that the employee knew about the acts if a hostile work environment
claim is to survive summary judgment"]). In any event, this statement is not actionable, as Mr.
Sandoval was only privately expressing his frustration regarding plaintiff's behavior with another
colleague (see plaintiff's dep, at 254-255; see e.g. Braunstein v Sahara Plaza, LLC, 2022 WL
17480962, * 2, 2022 US App LEXIS 33635, * 3-4 [2d Cir 2022] [dismissing hostile work
environment claim, reasoning that "(u)nder our precedent, use of the word 'bitch,' by itself, 'does
not automatically command an inference of gender-based hostility' ... 'we cannot say that use of
the word 'bitch' always and in every context has that meaning or that its usage need not be viewed
in context"'] [citations omitted]; Silberfeld v ABC Carpet Co., Inc., 2010 NY Misc. LEXIS 1703,
* 17 [Sup Ct, NY County ] ["the term 'bitch' has been held not to have a sexual connotation in
circumstances very similar to those in this case, in which the evidence suggests that hostility arose
out of a personality conflict between coworkers''], citing LaMarco v New York State Nurses Assn,
118 F Supp 2d 310, 317 [ND NY] [use of "bitch," with other gender-neutral offensive conduct, is
not enough to show gender-based hostility]).
Retaliation
1. Employment Retaliation
In her cause of action for employment retaliation, plaintiff alleges that when she reported
Mr. ~~doval's behavior, "the campaign retaliated against Denson by severely diminishing the
cond1t1~ns and scope of her employment and preventing her from career advancement" (amended
complamt, ,i 5; see also id., ,i,i 25-28).
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1:
Under the NYCHRL, it is unlawful to retaliate against an employee for opposing
discriminatory practices (Administrative Code § 8-107 [7] see Nezaj v PS450 Bar & Rest., 719 F
Supp 3d 318, 330 [SD NY 2024]). To establish a claim for retaliation under the NYCHRL, a
complainant must show that (1) she engaged in a protected activity, (2) the employer was aware
that she participated in such activity, (3) the employer engaged in conduct which was reasonably
likely to deter a person from engaging in that protected activity, and (4) there is a causal connection
between the protected activity and the alleged retaliatory conduct (see Sanderson-Burgess v City
of New York, 173 AD3d 1233, 1235-1236 [2d Dept 2019]; accord Parham, 84 Misc 3d 1204[A],
2024 NY Slip Op 51360[U], at * 7). "Protected activity" refers to "actions taken to protest or
oppose statutorily prohibited discrimination" (Aspilaire v Wyeth Pharmaceuticals, Inc., 612 F
Supp 2d 289,308 [SD NY 2009]; Ramos v Metro-North Commuter R.R., 2020 WL 2041986, 2020
NY Misc LEXIS 1666 [Sup Ct, NY County 2020]).
"'To establish its entitlement to summary judgment in a retaliation case, a defendant must
demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered
legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of
fact as to whether the defendant's explanations were pretextual"' (Reichman, 179 AD3d at 1119-
20 [citation omitted]; see Forrest, 3 NY3d at 305). Where a defendant produces "evidence that
justifies [his or her] allegedly retaliatory conduct on permissible grounds ... [t]he plaintiff must
either counter the defendant's evidence by producing evidence that the reasons put forth by the
defendant were merely a pretext, or show that, regardless of any legitimate motivations the
defendant may have had, the defendant was motivated at least in part by an impermissible motive"
(Reichman, 179 AD3d at 1120 [citation omitted]; see also Delrio v City of New York, 91 AD3d
900, 902 [2d Dept 2012]).
This court finds that the Campaign has met its initial burden of demonstrating that the
plaintiff cannot make out a prima facie case of unlawful retaliation. First, plaintiff does not assert
that the Campaign unlawfully terminated her employment, because it is undisputed that plaintiffs
employment with the Campaign came to its natural end on November 10, 2016-i.e., two days
after the 2016 presidential election on November 8, 2016-along with the vast majority of the
Campaign's workforce (plaintiffs dep, at 351-353; Castillo dep [NYSCEF Doc No. 384], at 216).
Indeed, plaintiff admits that she did not have an expectation of continuing to work for the
Campaign following the election (see plaintiffs dep, at 353).
Moreover, plaintiff fails to present any evidence, other than speculative assumptions, that
the Campaign retaliated against her during her employment for any purported protected complaints
(see plaintiffs dep, at 270-271 [testifying that she had a "reasonable suspicion," but no "factual
basis to verify [it]" that Mr. Sandoval "was behind," the theft of her computer charger, and the
hacking of her computer account]; id. at 323 [testifying that she "believed" that she was not
permitted to participate in the Women's Tour, a campaign event, "for retaliatory reasons," and
because Ms. Castellano and Jeff DeWitt "determined that [she was] going to be in a certain, very
I
limited position," but also that this was an "assumption," and she didn't know "for sure"]; id. at
326 [testifying that the Campaign's decision to not allow her to work in Nevada was "part of the
overall. retaliatory acts of The Campaign," but admitting that this was her "belief," and that the
Campaign never told her that she wasn't allowed to work there because she made complaints, and
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that she didn't know whether or not the Campaign had "a legitimate business reason for not sending
[her] to Nevada"]).
Such speculative assertions are insufficient to defeat summary judgment (see e.g. Ellison,
178 AD3d at 668 ["The plaintiff offered nothing but speculation that any of the defendants'
challenged actions were motivated, even in part, by unlawful discrimination or retaliation, and
such speculation is insufficient to defeat summary judgment"]; Cobb v Ellab Inc., 2024 WL
1963430, * 12 [ND NY 2024) ["Plaintiff has offered nothing but speculation that Defendant's
challenged action was motivated, even in part, by unlawful discrimination or retaliation, 'and such
speculation is insufficient to defeat summary judgment'"] [citation omitted]; see also Ciulla v
Xerox Corp., 70 Misc 3d 1205[A], 2021 NY Slip Op 50007[U), * 12 [Sup Ct, NY County 2021)
["Plaintiff's unsupported belief that his termination was motivated by disability is based on nothing :,
more than speculation" which is '"insufficient to defeat summary judgment"'] [citation omitted]). l
Plaintiff also asserts in general terms that the Campaign retaliated against her by (1)
reassigning one of its own Twitter accounts to another employee, (2) trying to "steal" her personal
laptop, and (3) denying her access to a voter database (which she asserts was important for her job
duties) (see plaintiffs dep, at; 250, 265, 279-280). However, other than simply labeling this
purported conduct as "retaliatory," she fails to identify any facts attributing this alleged conduct to
any protected complaint made by her. Indeed, to the contrary, she states that the alleged conduct
was carried out by certain Campaign workers simply because they were "jealous" of her promotion
out of the Campaign's data department (i.e., not because of any protected conduct on her part) (see
id. at 85-89, 152). Plaintiff similarly makes a conclusory assertion that she was "retaliated" against
by being asked to travel to the West Coast to work for approximately two weeks, yet she admits
that she agreed to this travel arrangement (see plaintiffs dep, at 207-210, 285).
These conclusory assertions are insufficient to demonstrate a causal connection between
the protected conduct and the allegedly adverse employment action, which must be shown to
demonstrate a prima case of retaliation (see Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 967
[1 st Dept 2009] [affirming dismissal of NY CHRL retaliation claim]; see also Shapiro v State, 21 7
AD3d 700, 702 [2d Dept 2023] ["Here, the defendants met their initial burden of demonstrating
that the plaintiff could not make out a prima facie case of unlawful retaliation by showing that the
challenged actions were not causally connected to any protected activity engaged in by the
plaintiff']; Ortiz v Equinox Holdings, Inc., 2023 NY Misc LEXIS 2909, * 17-18 [Sup Ct, NY
County 2023] [dismissing NYCHRL retaliation claim, stating that "there is just nothing in the
record on which a reasonable juror could find that Equinox retaliated against plaintiff for making
the complaints"]).
Moreover, most of challenged conduct constitutes nothing more than trivial matters, which
are insufficient as a matter of law to meet the retaliation requirements under the NYCHRL (see
e.g. Reichman, 179 AD3d at 1120 [affirming dismissal of retaliation claim, finding that
defendants' conduct in giving plaintiff an unfavorable performance review and transferring him to
another firehouse were not "reasonably likely to deter a person from engaging in protected
activity"]; Leader v City of New York, 2020 NY Misc LEXIS 1255, * 39 [Sup Ct, NY County
March 16, 2020] [dismissing retaliation claim, finding that defendants' alleged failure to
investigate plaintiffs complaint in good faith and denying plaintiff access to their investigatory
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file were not reasonably likely to deter a person from engaging in protected activity]; see also
Etienne v MTA New York City Tr. Auth., 223 AD3d 612, [1 st Dept 2024] [granting summary
judgment on retaliation claim because "plaintiff failed to plead sufficient facts as to why [the
challenged conduct] would dissuade a reasonable employee from complaining about
discrimination, or why it constituted anything more than a trivial harm"]).
For these reasons, plaintiffs employment retaliation claim under the NYCHRL fails a
matter of law and must be dismissed.
2. Post Employment Retaliation Claim
Plaintiff moves for partial summary judgment on her amended supplemental complaint,
which is premised on the assertion that the Campaign's decision to initiate a prior arbitration
against plaintiff was motivated by retaliatory intent. Plaintiff argues that Mr. Glassner's
deposition, which was taken after the First Department's decision, confirms every element of her
post-employment retaliation claim, and that the Campaign's purported legitimate non-retaliatory
reason for bringing a $1.5 million arbitration against her based on a supposed "good faith belief'
that she had violated the NDA is undeniably false, and a pretext for unlawful retaliation as a matter
of law.
However, plaintiff is precluded, by both the successive summary judgment rule and the
doctrine of the law of the case, from bringing this third motion for summary judgment on her
supplemental amended complaint. Plaintiffs arguments supporting her post-employment
retaliation claim have already been soundly rejected by this court and the First Department, both
of which found that she failed to proffer any evidence suggesting that the Campaign's decision to
commence an arbitration against her was pretextual or motivated by retaliatory intent. Indeed, the
First Department, in upholding this court's prior decision denying her second motion,
unequivocally held that the Campaign had proffered "a legitimate basis for compelling arbitration,
i.e., that it in good faith believed plaintiff violated the NOA by making factual allegations that
exceeded the facts necessary to state a viable claim," and that plaintiff "failed to submit evidence
showing that this proffered reason was pretextual" (Denson v Donald J Trump for President, Inc.,
206 AD3d at 512] [internal citations omitted]).
It is well-established that "[s]uccessive motions for summary judgment should not be
entertained without a showing of newly discovered evidence or other sufficient justification"
(Jones v 636 Holding Corp., 73 AD3d 409,409 [Pt Dept 2010], citing Phoenix Four v Albertini,
245 AD2d 166, 166 [1 st Dept 1997]; see also Ferolito v Vultaggio, 36 Misc 3d 1227[A], 2012 NY
Slip Op 51523[U], * 4-5 [Sup Ct, NY County 2012] ["New York law has a 'strong policy against
allowing successive motions for summary judgment"'] [citation omitted]).
"This is particularly true where the motion is based on legal grounds and factual assertions
that were or could have been raised in an earlier motion" (Ferolito, 36 Misc 3d 1227[A], 2012 NY
Slip Op 51523 [U], at * 5). Accordingly, "[ s]uccessive motions for summary judgment should not !
be entertained in the absence of good cause, such as a showing of newly discovered evidence"
(Deutsche _Bank Natl. Tr: Co. v Elshiekh, 179 AD3d 1017, 1020 [2d Dept 2020]). Indeed, "[a]
~
party seekmg summary Judgment should anticipate having to lay bare its proof and should not
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expect that it will readily be granted a second or third chance," because "[s]uccessive motions for
the same relief burden the courts and contribute to the delay and cost of litigation" (id. at 1020).
Plaintiffs third summary judgment motion on her post-employment retaliation claim is the
exact same motion that was previously denied by this court, and affirmed by the First Department.
In her new summary judgment motion, plaintiff fails to submit any newly discovered evidence that
the Campaign retaliated against her in bringing the arbitration. As courts have repeatedly stated,
"'evidence is not newly discovered simply because it was not submitted on the prior motion; rather,
the evidence must not have been available to the party at the time it made its initial motion and
could not have been established through alternate evidentiary means"' (Emtec Consultants,
Professional Engrs., P.L.L.C. v Elias Props. Levittown, LLC, 2022 NY Misc LEXIS 4900, * 4
[Sup Ct, Nassau County 2022], quoting P.J 37 Food Corp. v George Doulaveris & Son, Inc., 189
AD3d 858,859 [2d Dept 2020]; see generally Matter of Ulises R. v Elizabeth HT, 217 AD3d 639,
641 [1 st Dept 2023] ["regardless of which standard is applied to the motion, the court correctly
determined that the father failed to demonstrate that the newly discovered evidence could not, with
due diligence, have been discovered earlier"]).
Here, plaintiff's attempt to justify the filing of a second summary judgment motion on the
same claim is based solely on the fact that she deposed Mr. Glassner on January 9, 2023 (i.e., six
months after the First Department affirmed this court's denial of plaintiffs prior motion).
However, Mr. Glassner's deposition testimony is not "new evidence" under the law, as plaintiff
was fully aware that Mr. Glassner was a relevant witness before she filed her first motion in April
2021, as well as before she filed her second motion in June 2021, but she voluntarily elected to file
those motions before taking his (or any other) depositions (see e.g. Genesis Merch. v Gilbride,
2023 NY Misc LEXIS 5424, * 7 [Supt, NY County 2023] [denying successive summary judgment
and rejecting plaintiffs' assertion that further deposition testimony and expert materials constituted
"new" evidence, finding that "plaintiffs made a strategic decision to move for summary judgment
while discovery was ongoing and before any expert testimony was obtained, though that testimony
was clearly available had plaintiffs deigned to obtain it before moving"]; 3 I 3 43rd St. Realty, LLC
v TMS Enters., LP, 215 AD3d 901, 904 [2d Dept 2023] ["although the deposition testimony of
Terry Lazar, a principal of the sellers, was not elicited until after this Court's decision and order
holding that the buyer's previous cross-motion for summary judgment should have been denied,
the buyer failed to demonstrate that Lazar's testimony established facts that were not available to
the buyer at the time it made its previous cross-motion for summary judgment and which could
not have been established through alternative evidentiary means"], citing Vinar v Litman, 11 0
AD3d 867, 869 [2d Dept 2013] [deposition testimony elicited after the denial of a first summary
judgment motion could not be considered "new" evidence to establish facts that could have been
established at the time of the initial motion]).
As such, this third motion for summary judgment is denied (see Demble v Acton Carting
Environmental Servs., Inc., 211 AD3d 508, 508 [Pt Dept 2022] ["Supreme Court correctly held
that the successive summary judgment motions were improper"]; Matter ofCUCS HDFC v Aymes,
! 91 AD3d 522, 523 [Pt Dept 2021] ["the court properly denied as improper successive summary
Judgment motions respondent's motions in sequence 5 and 6 for summary judgment on his
counterclaim based on his contention that petitioners' building violates the Zoning Resolution of 1\
the City of New York, since respondent had previously sought summary judgment on his claim
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that petitioners' building violates the Zoning Resolution"]; Landau, P.C. v Goldstein, 76 Misc 3d
138[A], 2022 NY Slip Op 51002[U], ** 1 [App Term, pt Dept] ["defendant's motion violated the
rule against successive summary judgment motions, since he previously sought summary
judgment ... on the same grounds without 'showing ... newly discovered evidence or other
sufficient justification"'] [citation omitted]).
Plaintiff's third summary judgment is also precluded by the doctrine of the law of the case.
The law of the case doctrine "is a rule of practice premised upon a sound policy that once an issue
is judicially determined, further litigation of that issue should be precluded in a particular case"
(Matter of Part 60 RMBS Put-Back Litig., 195 AD3d 40, 47 [Pt Dept 2021]; accord Teshabaeva
v Family Home Care Servs. of Brooklyn & Queens, Inc., 227 AD3d 487,487 [15 1 Dept 2024]). "It
applies to prevent 'the parties or those in privity' from relitigating 'an issue decided in an ongoing
action where there previously was a full and fair opportunity to address the issue"' (Aspen
Specialty Ins. Co. v RLI Ins. Co., Inc., 194 AD3d 206, 212 [151 Dept 2021] [citation omitted]).
Moreover, "[a]n appellate court's resolution of an issue on a prior appeal constitutes the law of the
case and is binding on the Supreme Court, as well as on the appellate court and operates to
foreclose re-examination of the question absent a showing of subsequent evidence or change of
law" (Carmona v Mathisson, 92 AD3d 492, 492-493 [P1 Dept 2012] [citation, internal quotation
marks, ellipsis and brackets omitted]).
Given the prior orders in this court which denied plaintiff's identical summary judgment
motion, as well as the Appellate Division, First Department's affirmance of this court's order,
plaintiff's third bite at the apple is precluded (see Mezinev v Tashybekova, 226 AD3d 570, 571 [1 st
Dept 2024 ]). ,ia
Moreover, plaintiff has failed to present any "subsequent evidence" that would warrant a
different result (see NAMA Holdings, LLC v Greenberg Traurig LLP, 92 AD3d 614,614 [1st Dept
2012]). In his affidavit, Mr. Glassner explained that "maintaining the confidentiality of certain
private and sensitive information and enforcing its contractual rights was always very important
to the Campaign," and that plaintiff "breached her confidentiality and non-disparagement
obligations by pleading certain sensationalist allegations that the Campaign in good faith believed
far exceeded what she was required to allege in order to state viable lawsuit claims" (Glassner dep,
,r,r 2-3). Mr. Glassner alleged that, as such, "[t]he Campaign initiated the arbitration against Ms.
Denson because it had a good faith belief that she had breached her agreement and believed it was
important to the future success of the Campaign that it enforce its contractual confidentiality and
non-disparagement rights under the agreement" (id., ,r 6). Both this court and the First Department
found that Mr. Glassner's affidavit testimony was sufficient to satisfy the Campaign's burden of
articulating legitimate, non-retaliatory reasons for its conduct.
In his deposition testimony, Mr. Glassner similarly testified that the Campaign decided to
commence the arbitration because it believed that plaintiff had purposefully pleaded sensationalist
allegations in her complaint for media consumption to embarrass the Campaign and make it appear
as if it was disorganized, chaotic, and unprofessional (see Glassner dep, at 27-28, 32-35, 41, 49).
Mr. Glassner further testified that the Campaign believed that plaintiff had violated her I
confidentiality and non-disparagement obligations by unnecessarily disclosing information that l'.,r
had no bearing on her discrimination claims, such as skewed information pertaining to internal and
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II
otherwise private Campaign operations, communications, hiring and personnel decisions, and even
purported Secret Service activity (see id. at 48-69).
Accordingly, in the time since the First Department's decision, plaintiff has failed to
adduce any evidence undermining the Campaign's "legitimate basis" for initiating the arbitration
or showing that this legitimate basis was pretextual or motivated even in part by retaliatory animus
(see e.g. Suri, 164 AD3d at 129 [once a legitimate basis has been articulated, the burden shifts to
plaintiff to "counter (this) evidence by producing pretext evidence (or otherwise), or show that,
regardless of any legitimate motivations the defendant may have had, the defendant was motivated
at least in part by (retaliation)"]; Bennett v Health Mgt. Syst., Inc., 92 AD3d 29, 39 [1 st Dept 2011]
[once the defendant has articulated a legitimate, non-retaliatory reason for its conduct, "the
plaintiff may not stand silent"]). As such, her post-employment retaliation claim fails as a matter
of law and must be dismissed. I'
Accordingly, it is
ORDERED that defendant's motion for summary judgment (motion sequence no. 014) is
granted, plaintiffs motion for summary judgment (motion sequence no. 015) is denied, and both
the amended complaint and the amended supplemental complaint are dismissed with costs and
disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bills of
costs; and it is further It
ORDERED that the Clerk is directed to enter judgment accordingly.
2/14/2025
DATE FRNCIS A. KAHN, 111, A.J.S.C.
CHECK ONE: CASE DISPOSED NoHSN!sipRAf.JC1$_A. KAHN Ill (
GRANTED □ DENIED GRANTED IN PART LJ OTHER J. s. C. ':
APPLICATION: SETTLE ORDER SUBMIT ORDER ,,
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE tf
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