DENSON v. Lift Our Voices, Amicus Curiae. (2026)

Order, Supreme Court, New York County (Francis A. Kahn III, J.), entered on or about February 18, 2025, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the retaliation cause of action premised on defendant commencing an arbitration against plaintiff, unanimously reversed, on the law, with costs, and the motion denied.

This appeal arises from a long-running discrimination lawsuit filed by plaintiff, the former director of Hispanic engagement for defendant Donald J. Trump's 2016 presidential campaign.  As relevant to this appeal, plaintiff initiated this action in November 2017 asserting causes of action for discrimination, a hostile work environment, and defamation.  One month later, defendant filed a demand for arbitration against plaintiff seeking $1.5 million in damages because plaintiff's discrimination lawsuit violated the parties' non-disclosure agreement (NDA).  The Southern District of New York has since held that the NDA is invalid and unenforceable (Denson v Donald J. Trump for President, Inc., 530 F Supp 3d 412 [SD NY2021] ).

In a supplemental complaint for post-employment retaliation, plaintiff alleges that defendant violated New York City Human Rights Law, Administrative Code of City of NY § 8–101, et seq.  (NYCHRL) when it filed for arbitration in response to plaintiff's complaint.  Plaintiff then moved for summary judgment on her retaliation claim.  Defendant opposed, relying on a two-page affidavit from the defendant's former Chief Operating Officer, Michael S. Glassner.  He averred that defendant initiated its arbitration because it had a “good faith belief that [plaintiff] had breached [the NDA].” The trial court denied plaintiff's motion for summary judgment and this Court affirmed.  We concluded that Mr. Glassner's affidavit was sufficient to raise a triable issue of fact as to whether defendant proffered a legitimate non-retaliatory basis for its conduct sufficient to defeat plaintiff's motion for summary judgment (Denson v Donald J. Trump for President, Inc., 206 AD3d 512 [1st Dept 2022] ).  However, we did not find that defendant conclusively established that it had a legitimate motive for bringing the arbitration.

The parties have since engaged in discovery, including taking the deposition of Mr. Glassner.  Defendant moved for summary judgment dismissing each claim asserted in the amended complaint and amended supplemental complaint.  Plaintiff cross-moved for partial summary judgment on her amended supplemental complaint premised on post-employment retaliation due to the arbitration filing.

The court should have denied defendant's motion for summary judgment to the extent it sought dismissal of plaintiff's retaliation cause of action premised on defendant's filing of an arbitration against her.  To establish a causal connection between a plaintiff's protected activity and an action her employer took that disadvantaged her, a plaintiff needs to show that retaliatory animus was “a motivating factor” for the defendant (Watson v Emblem Health Servs., 158 AD3d 179, 182–183 [1st Dept 2018] ).

Here, defendant met its initial burden of establishing a non-retaliatory reason for filing the arbitration.  In response, plaintiff identified sufficient evidence to raise a triable issue of fact as to whether the proffered reason was pretextual (see Watson, 158 AD3d at 183).  Among other things, Mr. Glassner averred that defendant commenced the arbitration against plaintiff because it believed that plaintiff's complaint contained “certain” disparaging and “sensationalist allegations” which “far exceeded what she was required to allege in order to state viable” discrimination causes of action against it.  During his deposition two years later, however, Mr. Glassner testified that it was his personal decision to file the arbitration because he believed that every substantive paragraph of plaintiff's complaint violated the NDA. Mr. Glassner could not describe how he distinguished between legitimate and illegitimate allegations for purposes of enforcing the NDA and could not specify which allegations were actually unnecessary for plaintiff to pursue this litigation.

Plaintiff also submitted evidence that although defendant had sought $1.5 million from her in the arbitration, defendant was unable to articulate, let alone establish, any consequential damages stemming from the alleged breach of the non-disclosure agreement (see Milan Music, Inc. v Emmel Communications Booking, Inc., 37 AD3d 206, 206 [1st Dept 2007] ).  While Mr. Glassner testified that the $1.5 million damages demand “c[a]me from” discussions with counsel, he also testified that it was “hard to know” whether the campaign “los[t] a dollar anywhere because ․ [plaintiff] filed this complaint.”  This testimony raises factual questions about whether the Campaign selected $1.5 million in damages arbitrarily to unlawfully silence plaintiff from exercising her legal rights.

Finally, plaintiff introduced evidence of similar lawsuits that defendant had filed against its former staffers alleging discrimination.  These lawsuits, together with the foregoing evidence, could lead a jury to conclude that enforcement of the NDA was merely pretext for discrimination.

We have considered the remaining arguments and find them unavailing.

Motion by Lift Our Voices to file an amicus curiae brief, granted.