Plaintiff wins retaliation appeal against Trump's 2016 campaign

The Appellate Division has reinstated a retaliation case filed against Donald Trump's 2016 campaign, which alleges that, after its former director of Hispanic engagement sued the campaign for sex discrimination, the campaign filed an arbitration demand against her, seeking $1.5 million in damages. 

The case is Denson v. Donald J. Trump for President, Inc., issued on October 22. While plaintiff signed an NDA upon working for the campaign, a federal court later struck down the NDA as invalid and unenforceable. In this round, plaintiff argues the arbitration demand was filed in retaliation for her discrimination lawsuit. In an affidavit, the campaign's Chief Operating Officer, Glassner, asserted a good faith belief that the arbitration demand was legitimate. That was enough for State Supreme Court to dismiss this retaliation case.

The First Department reverses, and the case returns to Supreme Court for trial. The reason is that Glassner's subsequent deposition did not conclusively prove the campaign filed the arbitration claim in good faith. The Court reasons that Glassner's testimony was all over the place but not specific enough to prove as a matter of law that the campaign had a legitimate basis to proceed against plaintiff after she filed her lawsuit:

plaintiff identified sufficient evidence to raise a triable issue of fact as to whether the proffered reason was pretextual. 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 wins the appeal because the defendant cannot show how it suffered any real damages from her lawsuit, suggesting the $1.5 million demand was an arbitrary tactic to silence the plaintiff.

What we learn from this case is that not all affidavits in support of a summary judgment motion are enough to dismiss the case. Plaintiffs should determine whether the affidavit is sufficiently vague to permit discovery that would explore the factual basis for the otherwise untested allegations in the affidavit.