Date: 11-10-2023

Case Style:

Graham Chase Robinson v. Robert De Niro, et al.

Case Number: 1:19-cv-09156

Judge: Lewis J. Liman

Court: United States District Court for the Southern District of New York (Manhattan County)

Plaintiff's Attorney: Alexandra Harwin, Andrew Macurdy, Brent A. Hannafan, David W. Sanford\, Herbert Vincent McKnight, Jr., Kate MacMullin, Jeremy Heisler

Defendant's Attorney: Hillary Jacobs Raimondi, Brittany Kate Lazzaro, Craig Lawrence Rokuson, Gregory Ross Bennett, Ingrid Julieth Cardona, Laurent Scott Drogin, Richard Carl Schoenstein, Melinda Lee Koster, Michael Joseph Lockman

Description: New York City, New York employment law lawyers represented the Plaintiff who sued the Defendants Fair Labor Standards Act violations Theories.

Plaintiff Graham Chase Robinson initiated this action on October 3, 2019 by filing a complaint against Canal Productions, Inc. and Robert De Niro, asserting various claims, including claims for gender discrimination and retaliation under federal and New York City law. Dkt. No. 1. In response, Canal asserted counterclaims against Plaintiff for breach of fiduciary duty, breach of the duty of loyalty, and conversion.

De Niro is an actor, director, and producer. Canal is a company that is owned by De Niro; De Niro is Canal's President and sole shareholder. Defendants describe Canal as a “loan out” company that contracts De Niro's services with production companies in connection with his acting, producing, and directing services. Plaintiff, however, notes that Canal provided services for De Niro to support all aspects of his professional and personal life.

Plaintiff was employed by Canal for over eleven years from February 4, 2008 to April 6, 2019. De Niro characterized Plaintiff, at least in part, as his “point person” and “head assistant.” During her employment at Canal, De Niro was Plaintiff's supervisor. Between April 2011 and 2017, De Niro granted Plaintiff's requests for new titles. For example, in 2018, Plaintiff's title changed from Director of Production to Vice President of Production and Finance. Plaintiff testified that the majority of her job did not change with the title changes. Dkt. No. 160 at 20-21.

Plaintiff's job responsibilities included running an array of errands for De Niro, his family, and Canal's office. P's 56.1 Statement ¶ 7; D's Counterstatement ¶ 7. In connection with her job, Plaintiff was available to De Niro “around the clock” and was in frequent communication with De Niro. P's 56.1 Statement ¶¶ 8-9; D's Counterstatement ¶¶ 8-9. Starting in 2017, Plaintiff maintained a home office as her official office.

Canal employed various persons other than Plaintiff. The key current and former Canal employees for purposes of the instant motions are listed below:

• Sabrina Weeks-Brittan served as an executive assistant at Canal from mid-July 2018 until January 2021 when she was promoted to the position of Manager of Production and Development.

• Gillian Spear served as an executive assistant at Canal at least from the period between mid-July 2018 to April 2021.

• Lulu White was hired on or about August 23, 2018 as an executive assistant at Canal and, according to her offer letter, reported to Plaintiff.

• Michael Kaplan worked as an assistant at Canal between 2006 and April 2020.

• Dan Harvey was employed as De Niro's personal trainer beginning in February 1984. Ds' 56.1 Statement ¶ 11; P's Counterstatement ¶ 11. The parties dispute the exact nature of Dan Harvey's job responsibilities. Dan Harvey testified that he would help De Niro prepare for movies with regards to “memorizing the scripts thoroughly and making sure that he was prepared physically for whatever character he was playing, whether he had to put on weight, lose weight or just look healthier” and claimed that running “errands” “was never part of [his] job.” Dkt. No. 327-4 at 169-70. However, Plaintiff claims that Dan Harvey's role was more similar to her own and the other executive assistants, although she admitted that “an hour or two a couple of times a week” he trained De Niro for certain periods of time and worked with production on De Niro's needs when it came to a gym or anything related. Dkt. No. 339-8 at 211-12, 224-25. She claims that Dan Harvey, like herself, did what De Niro directed them to do, including picking up coffee or newspapers, or at times organizing meetings for De Niro, although she admitted that she was not sure of the full extent of what De Niro asked Dan Harvey to do.

• Robin Chambers commenced employment for De Niro as an assistant in 1989 and left in 2003, although she worked for De Niro in some capacity between 2003 to 2020. Ds' 56.1 Statement ¶ 12; P's Counterstatement ¶ 12. Chambers testified that her employment was terminated in 2003 based on a request from De Niro's then-wife, Grace Hightower, who did not want a female assistant around.

• Tom Harvey is a longtime attorney for De Niro and Canal.

• Michael Tasch is a partner at a public accounting firm, Berdon LLP (“Berdon”), that does work for De Niro and Canal.

During the periods relevant to the present lawsuit, De Niro was in a relationship with Tiffany Chen. Ds' 56.1 Statement ¶ 5; P's Counterstatement ¶ 5. Chen has never been formally employed by Canal. Dkt. No. 327-90 at 33. She has never received a salary or benefits from Canal and has never held a job title at Canal. Id. at 33-34. However, in 2019, she started to have regular communications with Canal employees and would direct Canal employees to perform certain tasks for her and De Niro and, in 2022, she began to receive health insurance from Canal. Id. at 34-41; P's Counterstatement ¶ 5; Dkt. No. 335-8 at 38; Dkt. No. 335-20; Dkt. No. 335-50.

In late November or December 2018, Plaintiff informed De Niro that she would be resigning from Canal. Ds' 56.1 Statement ¶ 33; P's Counterstatement ¶ 33. De Niro, however, asked Plaintiff to stay as he was moving into a new residence and was in the midst of a divorce. Ds' 56.1 Statement ¶ 33; P's Counterstatement ¶ 33. Plaintiff ultimately agreed to stay for up to two additional years and to “make sure that items were handled for [De Niro] and he was comfortable with whatever needed to be transferred over to someone else,” Dkt. No. 160 at 107, but exactly what De Niro said that convinced Plaintiff to stay is disputed. At her deposition, Plaintiff claimed that De Niro told her that “he would give [her] a bad recommendation” if she left, although she later stated that he told her “if you leave me in the lurch I'll give you a bad recommendation.” Dkt. No. 335-12 at 102, 104. In a recorded audio call between Plaintiff and Chambers, Plaintiff recalled that De Niro had said that “if [she] didn't give him any notice . . . he would give [her] a bad recommendation.” Dkt. No. 322-73. De Niro, however, denied saying anything of the kind at his deposition. Dkt. No. 322-91 at 112-13.

On December 18, 2018, Plaintiff emailed De Niro to ask for an increase to her annual base salary, which at that time was $200,000. Ds' 56.1 Statement ¶ 34; P's Counterstatement ¶ 34. Specifically, she stated: “I have worked for you for 11 years, and I don't begrudge anyone their salary, but I want parity. To give you an example, I make less than your trainer who is at $250,000 base salary and expenses that exceed $70k a year.” Ds' 56.1 Statement ¶ 34; P's Counterstatement ¶ 34. De Niro and Plaintiff discussed Plaintiff's request on January 3, 2019. Dkt. No. 322-2 at 223; Dkt. No. 336 ¶ 3. Plaintiff states that De Niro told her that he did not have to pay her as much as Dan Harvey because “Chase, you don't have kids. Dan has a family to support.” Dkt. No. 336 ¶ 3. Plaintiff claimed that she responded, “That has no relevance to what you pay me.” Id.; see also Dkt. No. 335-15. After the meeting, De Niro increased Plaintiff's base annual compensation to $300,000 effective January 2019. Ds' 56.1 Statement ¶ 36; P's Counterstatement ¶ 36.

On or about August 1, 2018, De Niro leased a residential property known by Canal staff as, and will hereafter be referred to as, the “Townhouse.” Ds' 56.1 Statement ¶ 37; P's Counterstatement ¶ 37. In late-September/early October 2018, Plaintiff, Weeks-Brittan, and White began helping to furnish the Townhouse. Ds' 56.1 Statement ¶ 41; P's Counterstatement ¶ 41. The parties dispute whether Plaintiff volunteered to work on the Townhouse or instead whether Plaintiff was directed to perform such work. Ds' 56.1 Statement ¶ 41; P's Counterstatement ¶ 41. Plaintiff testified that De Niro had redirected her to work on the Townhouse instead of her other work and it became a majority of her workload. Dkt. No. 335-11 at 43. Plaintiff also testified that she objected on multiple occasions to being involved with the Townhouse as it “was his domestic life” and did not fall under the title Vice President of Production and Finance. Dkt. No. 160 at 43.

Plaintiff testified that in early March 2019, De Niro discussed with Plaintiff having one of the “girls on call”-seemingly a reference to his on-call assistants-stop by the Townhouse and check on it while he and Chen were away. Dkt. No. 336 ¶ 7. Plaintiff testified that she “reminded [De Niro] that it was something that he would have to pay extra for in overtime, and he got very upset and said I am not going to pay them for the work that they do in checking for his house, that he pays them enough[,] and doesn't want to pay them overtime.” Dkt. No. 335-12 at 87-88. Plaintiff states that she walked out of the apartment and said that she would not do anything that was illegal and he had to pay them for the hours that they worked. Id. at 88. Plaintiff, nevertheless, testified that she believed that De Niro did pay his employees for all of the hours that they worked. Id. There is no evidence in front of this Court that Canal failed to pay any employee the overtime such employee was owed.

Chen and Plaintiff exchanged emails and text messages relating to various aspects of work on the Townhouse. Ds' 56.1 Statement ¶ 48; P's Counterstatement ¶ 48. Chen testified that when she first remembered meeting Plaintiff, she thought “[t]here is something wrong with her, very seriously wrong with her.” Dkt. No. 327-90 at 35-36. Chen testified that Plaintiff could not look her in the face and that Plaintiff would move furniture and prune their trees without asking permission, and that it all “seemed very jealous and territorial.” Id. at 36-49. Chen further testified that she believed that Plaintiff was “jealous of everyone's relationship with Mr. De Niro” and she “spoke ill of everyone. She hated everyone. She was nasty to everyone. She was rude to everyone, including his children.” Id. at 52. Chen continued that between the time she met Plaintiff and Plaintiff's eventual resignation, Plaintiff did nothing except make complaints and create trouble. Id. at 60. For example, Chen testified that Plaintiff refused to give her the security code for the home so “if there was a problem[, Chen] couldn't access the security pad and the security panel.” Id. at 63. Chen also testified that she eventually became aware of Plaintiff overspending and buying a number of items that were not necessary for the Townhouse. Id. at 78. Due to Plaintiff's conduct, Chen testified that she wanted Plaintiff “out of the townhouse and [to] go back to the office because she was becoming very aggressive and annoying to have in the house.” Id. at 57.

In private text messages and emails, Chen called Plaintiff a “bitch” to De Niro in March and early April of 2019, Dkt. Nos. 335-25, 335-27, as well as to Kaplan on April 2, 2019, Dkt. No. 335-28. Chen described the situation involving Plaintiff as having become “very ‘single white female'” to Kaplan. Dkt. No. 335-29. There was also some talk around this time between Chen and De Niro that Plaintiff was in love with De Niro and the two speculated between themselves whether Plaintiff wanted to move in with De Niro. Dkt. No. 339-1 at 136-37. Chen wrote to De Niro via text message in January of 2019 about Plaintiff:

Her possessive manner over the house makes me very uncomfortable, down to having the cable bill and the security system password be [in] her name. It's all very weird and she is not easing up with the weird shit either. I do feel it's getting worse. Her sense of entitlement stems from this imaginary intimacy she has with you and I'm seeing it in her texts about the house all over again. She thinks she's your wife and I'm tired of her rearranging things and throwing my stuff on the floor in chaos whenever she decides she wants to be the “lady of the house” it's very bizarre and it really has to stop.

Dkt. No. 339-17. On March 28, 2019, Chen told De Niro about Plaintiff, “I'm not gonna be happy until you tell me she is looking for her replacement” and “[i]f you keep [Robinson], you and I will eventually have problems ....” P's 56.1 Statement ¶ 21; D's Counterstatement ¶ 21.

Plaintiff stated that toward the end of her employment in April 2019, she got the “sense” that Chen did not like her and did not want Plaintiff involved in work related to the Townhouse. Dkt. No. 327-2 at 76-77. Plaintiff stated that Chen would demean and denigrate her work. Dkt. No. 160 at 70. In a text message from April 6, 2019 to someone named Alexandra, Kaplan stated that “Bob[']s new girlfriend made it her singular mission” to get rid of Plaintiff and that Chen “felt [Plaintiff] was in love and a psycho.” Dkt. No. 335-29.

Plaintiff also testified that in 2019 De Niro's behavior toward her got worse. Dkt. No. 160 at 47. At one point, there was a mold situation at the Townhouse and, according to Plaintiff, De Niro's behavior “got worse and more abusive during the mold situation.” Id. at 46, 48.

Plaintiff testified that she had conversations with De Niro about not being involved in personal items related to the Townhouse and with his kids. Dkt. No. 160 at 90. She stated that “[m]y job at Productions kind of had been redirected to all of this gender female role where I was handling this housework, and vacuuming, and doing all of these things ....It had nothing to do with VP production of finance. That was incredibly demeaning and frustrating for me to deal with.” Dkt. No. 160 at 100.

Plaintiff also testified that there were “many occasions that [she] spoke to [De Niro] about being harassed, whether it was by him, by his wife” or by others. Id. at 45. She testified that she spoke to him in 2019 about how he was harassing her about her work on the Townhouse and had been berating her about items that needed to be done for the Townhouse. Id. Throughout March 2019, Robinson complained to Tom Harvey that she was facing “down right harassment” and she feels “constantly. . . harassed.” P's 56.1 Statement ¶¶ 34-35; D's Counterstatement ¶¶ 34-35. Plaintiff also testified at her deposition that she “recall[ed] an incident in speaking to Tom Harvey and Michael Tasch” where she told them that she “was being targeted base[d] on [her] gender by [Chen], and being blamed for people not getting back to [Chen].” Dkt. No. 335-12 at 129.

On March 27, 2019, after Chen emailed Plaintiff stating “[i]t's becoming increasingly difficult to understand what you do or don't know,” Plaintiff emailed De Niro stating:

It has been pretty obvious for a while that there is an issue with me working for you. And I've tried really hard (without bothering you) to get out of the middle and out of your home and get back to my job. It's not working.

When you can, let's talk. It's not a heart attack conversation; it's not about throwing in the towel-I just want to make sure that everything runs smoothly.

Dkt. No. 322-22. Plaintiff followed up again on April 2, 2019 stating:

I'm worried that my presence in the house amongst other things is not working for Tiffany, and therefor[e] you-and I've felt this way since September/November. It's been very difficult. Part of me worrying is thinking about what happened to Robin with Grace. And I don't want it to get to that point. I want to be able to finish what we agreed upon and fulfill my commitment to you and to the job.

So I came up with this idea and I hope we can discuss it if you think it has merit. It reminds me of how we dealt with the friction between Grace and me years ago. It's out of sight, out of mind. As you know from our conversation in January, I planned on being based outside of New York after I fulfilled our commitments, but I believe this could be the solution and would work for everyone involved. What do you think? Can we discuss.

You know how much I love this job, and even when I was based away from New York I was always there if you needed me. I want to go back to that arrangement.

Dkt. No. 335-41. On that same date, Plaintiff wrote to an acquaintance that she was “[a] bit nervous. I really think [Chen] wants me gone after that email.” Dkt. No. 322-32. In a text message from that same day, Kaplan wrote to a person named Morgan stating: “assume u wouldn't want to work for bob again post [Plaintiff],” to which Morgan responded, “Hahaha why do you say that. Is this really her demise?” Dkt. No. 335-44. Kaplan then responded: “i think so. We have never been closer to this” and then later wrote “she . . . gave chase a lot of shit via email with Bob copied and so I think she's getting it from all angles.” Id.

On April 4, 2019, Plaintiff wrote to De Niro again:

I've worked for you for 11 years. I've bent over backwards and done everything and anything you've asked. We addressed part of an issue yesterday [April 3, 2019] and I thought we were in a better place through mutual understanding. You suggested that you, Tiffany and I were going to sit down and discuss the issues today or Friday. Are we still having that meeting?

Of course I won't go to London if you need me. You have always come first, but I need to sit down with you and we need to discuss the going forward expectations for me and my position.

Under the circumstances, the current responsibilities of my position are unclear. Although I thought we had clarified them in January. As you will recall in January, you increased my salary and we altered the duties of my position effective for the next two years-I turned down another position in reliance upon our understanding.

In the context of recent unfounded and untrue accusations (missing pots and pans & missing aircraft catering)[,] the situation is confusing to say the least. If you desire to realign my position again based on current circumstances, we should speak.

On April 4, 2019, the interior designer who was retained to work on the Townhouse texted Plaintiff with the messages “[j]ust quit[,]” to which Plaintiff responded “I know. I will soon.” The interior designed continued “Ok but I think you will be so much happier,” to which Plaintiff quickly replied, “I need to set myself up better.” Ds' 56.1 Statement ¶ 64; P's Counterstatement ¶ 64.

On April 4, 2019, Chen wrote to Spear and Weeks-Brittan about Plaintiff. She stated:

[i]t was brought to our attention that during Chase's spending spree here, instead of returning items, she often times would give things away. Bob asked me to ask you both to please try and make a list of anything you could recall since you were here during that period. Even if you guys ended up with things, we are happy for you to keep them, we just need to find out what she purchased and gifted without our permission.

Spear and Weeks-Brittan agreed to think about it and share anything they saw. Dkt. No. 322-35.

At some point, Chen and De Niro made the decision that Plaintiff would not be involved with anything regarding the Townhouse. Dkt. No. 32-90 at 166. Accordingly, on April 5, 2019, Chen wrote to White concerning the Townhouse and said: “Make sure you get a list of everything chase had yet to follow up with and/or complete. Especially a list of things she was supposed to have followed up with Rachel.... Bob wants to see this list and make sure you have everything from Chase. She is not to be involved with anything going forward. You deal only with myself and Bob personally now.” Dkt. No. 335-50.

Plaintiff resigned on April 6, 2019. As of the morning of April 6, 2019, she had not planned to resign from Canal. P's 56.1 Statement ¶ 67; D's Counterstatement ¶ 67. During that day, Plaintiff became aware from speaking to Kaplan that Chen was emailing the office. Dkt. No. 355-12 at 164. Plaintiff also had a conversation with White that she felt was “sort of a red flag or a distance” and she had “this gut feeling that there was something going on with White.” Id. at 177. Prompted by the conversation with White, Plaintiff used the administrator access she had been given by Canal to review White's emails and noticed an email from Chen to White. P's 56.1 Statement ¶ 69; D's Counterstatement ¶ 69. In that email dated April 6, 2019, Chen wrote to White, copying Spear, Weeks-Brittan, and De Niro: “Chase is no longer involved with anything regarding the townhouse or the twins.[3] You are not to discuss anything with her that you discuss with us. Any emails between us are not to be shared with Chase.” Dkt. No. 335-92. Chen later wrote to the same individuals: “I would like to remind you that we all work for Bob and you are not Chase's assistant.” Id.

That same day, Plaintiff sent De Niro her resignation via email. The email was titled “Important” and stated, in relevant part:

In November, I informed you that I wanted to leave Canal Productions and take another opportunity. You implored me to stay. We worked out an agreement in January of what my job would be going forward for the next two years. I stayed with the best of intentions to help and support you during this very stressful time for you and your family. Throughout all the years I've worked for you, I've been loyal, protective (to the point of alienating others), honest, and beyond hard working (80-90 hour weeks). I poured my heart and soul into this job, and as a result, other parts of my life and opportunities were put on hold. You always came first.

Since our agreement, my job has changed to something that wasn't what we agreed on and doesn't work for either of us. I have emailed you several times about discussing it but it's obvious you haven't wanted to address it. As a result, I'm not able to do preform [sic] my job and succeed in fulfilling the expectations of the agreement we had with each other. In addition, I have been accused of ridiculous things like withholding information, sabotaging catering on a plane, stealing pots and pans, and not being diligent, professional or helpful. This email is to inform you that I am resigning effective immediately. Thank you for the last 11 years, Bob. I wish you all good things in the future.

P's 56.1 Statement ¶ 69; D's Counterstatement ¶ 69. Plaintiff's resignation became effective immediately and she provided no notice to De Niro or Canal. P's 56.1 Statement ¶ 70; D's Counterstatement ¶ 70.

De Niro forwarded Plaintiff's resignation to Chen stating “now we just have to work out severance[.]” Chen suggested, in response, that what would otherwise be offered to Robinson as severance instead be used “for the therapy everyone needs because of the ptsd every[one] has suffered as a result of her.” P's 56.1 Statement ¶ 72; D's Counterstatement ¶ 72.

The next day, Plaintiff called Tom Harvey concerning her resignation. Dkt. No. 335-42. She described her working situation as having become “untenable” and that “the agreement” she made with De Niro “and the job” they had discussed she would “be doing” “was not honored,” and she felt like her “responsibilities were starting to be taken away.” Id. She continued: “He wasn't speaking to me. He wasn't replying to my emails. He seemed so incredibly angry at me.” Id.

B. Events Post-Resignation

Following the end of Plaintiff's employment, Tom Harvey instructed Canal employees to review Plaintiff's emails, documents, and computers for appointments and other information concerning De Niro's activities and obligations. Dkt. No. 335-6 at 32, 43-44. Tom Harvey testified at his deposition that this review eventually resulted in an investigation into Plaintiff:

[E]ach of those people, Sabrina Weeks, Michael Kaplan, and Jillian would say to me, [“]Hey, by the way, you should look at this,[”] for example, she charged Bob to go to California for Amelia's birthday party. And it just kept coming up with more and more items that looked more and more ridiculous that she had hidden over the years. And at that point, we started to look or conduct as you call it, a, quote, “investigation” over time.

Id. at 33. Kaplan, at his deposition, recalled the investigation starting in the same manner. Dkt. No. 340-8 at 288. On April 9, 2019, Chen emailed Tash, copying De Niro, and stated: “Bob wants all of Chase's charges and expenses. Everything she had been spending.” Dkt. No. 322-43.

The next day, on April 10, 2019, Plaintiff emailed Tom Harvey informing him:

I've been thinking that it's best we enter into a severance agreement that includes financial compensation, confidentiality provisions and provisions for recommendations and other mutually agreeable terms. This would assist us all during this transition period since I have not been an employee since April 6, 2019. Please let me know your thoughts.

P's 56.1 Statement ¶ 76; D's Counterstatement ¶ 76. It is not clear whether Tom Harvey responded to this email.

On May 7, 2019, Plaintiff emailed Tom Harvey stating: “I'm in the process of submitting my business school applications and would like to get a few business school recommendations from Bob-this is time sensitive so I don't miss the application deadlines.” Dkt. No. 322-45 at ECF p. 4. After some back and forth, Tom Harvey responded on May 16, 2019: “Why don't you put it together and then I will make sure bob gets it.” Id. at ECF p. 2.

On June 4, 2019, Plaintiff sent an email entitled “London School of Economics” to De Niro, copying Tom Harvey, and attaching a draft letter of the recommendation. P's 56.1 Statement ¶ 79; D's Counterstatement ¶ 79. In the attached proposed letter of reference, Robinson describes her role at Canal as follows:

So much of what Chase contributed to my company was visible not only in her leadership and how she managed a team, but in her analytical abilities. Chase was able to identify areas of vulnerability and implement new systems not only for financial matters but in the areas of compliance and employee benefits. She also excelled at handling the production work for my films. Chase was instrumental in working closely with my lawyers and agents on deals and contracts. At times she negotiated directly with studios and producers and oversaw the budgets on my projects. In addition, Chase helped advise me on several of my other companies including a non-profit. She has a unique and proactive approach to all she does and has proven that she has the ability to handle an enormous workload requiring a level of dedication and discipline that is hard to find.

Several years ago, Chase took on the problem of benefits and the rising cost of health care for both employees and the company. She not only found a way to balance the two at Canal Productions but also at my other companies. The result was seen in a restructured system and the morale of the employees that work so hard for me. P's 56.1 Statement ¶ 79; D's Counterstatement ¶ 79. Plaintiff followed up on her request to De Niro concerning the letter of recommendation on June 7, 2019. P's 56.1 Statement ¶ 80; D's Counterstatement ¶ 80. On June 9, 2019, Tom Harvey responded by sending Plaintiff a draft release of claims and stating about the recommendation letter: “I am trying to get Bob to sign but he is having some reservations. I will try and rework the letter so he will sign but also wanted you to think about having Peter Grant or me signing.” Dkt. No. 307-30.

On June 9, 2019, Tom Harvey called Plaintiff to state that De Niro was upset about Plaintiff transferring Sky Miles from Canal's account to her personal account. Dkt. No. 247-1 at 201; P's 56.1 Statement ¶ 81; D's Counterstatement ¶ 81. Harvey testified that in that call he told Plaintiff that De Niro was not going to sign her letter of recommendation and one of the reasons was because De Niro claimed Plaintiff “stole from him.” Dkt. No. 322-89 at 429-30. A transcript of part of that call reveals that Harvey stated[4]: “I'm just telling you, in his mind, transferring-he knew you used them, but he didn't know you were transferring them out. I mean, there are like 4 million miles, according to him, that were transferred out,” to which Plaintiff responded, “He knew.” Dkt. No. 322-85.

On June 11, 2019, Plaintiff emailed De Niro stating:

I am very sad that this is where we find ourselves after 11 years of working so closely together. This is not what I wanted, but at this point, all we can do is move forward.

I felt forced to resign the way I did-you are very aware of why; there was no choice. Within hours of the emails being sent on April 6th, I was made aware of them-everyone at Canal knew. It was incredibly unprofessional and the cost to me was humiliating to say the least.

When I resigned in November of 2018, you refused to let me exit in good standing, telling me, in front of Robin, that you would give me a bad recommendation if I left you. Because of your current personal circumstances and the challenges you faced I turned down an opportunity and we made an agreement of how I would exit over a period of two years, transitioning the office and other items to a new system that you and I had agreed on.

Now I've been told by Tom Harvey that you are unwilling to sign the letter of recommendation for the London School of Economics. I've also been given a release to sign by Laurent and Tom Harvey.

Dkt. No. 322-49. Plaintiff then set forth a proposal in exchange for her signing the release. Id. The proposal consisted of nearly two years pay at the salary of $300,000 per year, nearly two years of medical coverage, a meeting with De Niro, a mutual release with an indemnity clause, recommendation letters for four business schools and for future employment signed by De Niro, the retainment of all miles in her Delta SkyMiles account, a mutually agreed upon press release, and reimbursement of legal expenses incurred in connection with the release and separation. Dkt. No. 327-49.

The next day, June 12, 2019, Kaplan sent a text message to Spear and Weeks-Brittan, stating that Tom Harvey wanted him to “to spend 24/7 thinking of crazy chase shit and write it down.” Dkt. No. 307-32 at ECF p. 4.

On July 2, 2019, Plaintiff sent De Niro and Tom Harvey an email advising them that she would involve a lawyer in order to protect her interests and “will assume that you have no interest in amicably resolving the situation[]” unless she heard back from them by July 12, 2019. P's 56.1 Statement ¶ 41; D's Counterstatement ¶ 41. On that same day, after receiving Plaintiff's email, Chen texted De Niro stating: “Chase emailed. She's threatening legal action if she still does not get a response by the 12th. Tom is getting ready to hit her hard with his letter.” Dkt. No. 307-33. De Niro responded: “Can you believe chase. As I said to Tom: who the fuck does she think she is?!?!” Id. Chen responded: “She thought she was your wife. I saw it from the beginning. I told you,” to which De Niro stated: “The balls. the nerve. the chutzpah. the sense of entitlement, how dare her!”

Harvey sent Plaintiff a letter on July 11, 2019 that accused her of wrongdoing. P's 56.1 Statement ¶ 44; D's Counterstatement ¶ 44. In that letter, Harvey stated:

A review of Canal Productions Inc.'s (“Canal”) various credit card, petty cash, and other accounts, reveals that you were involved in widespread abuses and unauthorized transactions during your employment.

It now appears that for more than four (4) years you have, without authorization, charged to Canal an extraordinary number of personal expenses. These include food, transportation (such as Uber and taxis), dog-sitting, groceries, cameras, iPhone, subscriptions to magazines and newspapers, Pilates classes, dry-cleaning, flowers for your residence, an unknown number of gift cards, and helped your[self] to petty cash.

In addition, you converted Canal's and Bob's American Express Membership Rewards Points into more than Seven (7) Million Delta SkyMiles over the past two (2) years without permission of authorization I strongly suggest you speak to an attorney and return the SkyMiles immediately.

Dkt. No. 307-34. The letter further alleged that Plaintiff had misrepresented that she had only taken one vacation day over the past four years, which allowed her to be paid out for more unused vacation days than she was entitled to, among other alleged offenses. Id. The letter continued by urging Plaintiff to “mitigate the damages you have caused and return the various computers, iPhones, cameras and other property in your possession that belongs to Canal” and stated that De Niro believed that Plaintiff had breached her fiduciary duty and obligation of loyalty and improperly enriched herself. Id. The letter further stated that she should “return the SkyMiles immediately to avoid legal action.” Id.

On or about July 25, 2019, Plaintiff's counsel reached out to Canal's counsel. P's 56.1 Statement ¶ 45; D's Counterstatement ¶ 45. On July 31, 2019, Plaintiff, through her counsel, stated that she had claims against Canal and De Niro for “sex discrimination, sexual stereotyping, hostile work environment and retaliation arising under NYHRL, NYLL and the Civil Rights Act of 1964, as amended, as well as claims implicating numerous wage-hour violations arising under NYLL and the FLSA.”

On August 17, 2019, Canal filed a lawsuit against Plaintiff in New York Supreme Court. P's 56.1 Statement ¶ 53; D's Counterstatement ¶ 53. In the lawsuit, Canal accused Plaintiff of conversion, breach of fiduciary duty, breach of the duty of loyalty, and fraud and sought to recover $6 million from Plaintiff. P's 56.1 Statement ¶¶ 53-54; D's Counterstatement ¶¶ 53-54. De Niro testified at his deposition that he was the person who decided to file the lawsuit against Plaintiff. Dkt. No. 335-2 at 424. He testified “I wanted her to return the stuff. Do what's right.” Id. The lawsuit was eventually withdrawn after Plaintiff filed the instant lawsuit in federal court and Canal reasserted its claims from the lawsuit in New York Supreme Court as counterclaims in this action. See infra Procedural History.

Around September of 2019, De Niro met with the Manhattan District Attorney's Office concerning accusations that Plaintiff stole from him. P's 56.1 Statement ¶¶ 56-57; D's Counterstatement ¶¶ 56-57; Ds' 56.1 Statement ¶ 100; P's Counterstatement ¶ 100. After reviewing a binder that Canal prepared to document its claims and conducting interviews with De Niro, Tom Harvey, and other Canal employees, the Manhattan District Attorney's Office declined to prosecute Plaintiff. P's 56.1 Statement ¶ 57; D's Counterstatement ¶ 57. In her declaration, Plaintiff claims that the investigation at the Manhattan District Attorney's Office was “lengthy and harrowing” for her and she was not notified until April 1, 2021 that the District Attorney's Office had closed its investigation into her. Dkt. No. 336 ¶ 12.

Plaintiff testified that during the course of her employment with De Niro, there “were times that [De Niro] was incredibly abusive and it was very difficult to work at Canal.” Dkt. No. 307-11 at 28. She stated that he consistently yelled, screamed, and berated her, but rarely yelled or berated Kaplan. Id. at 48; Dkt. No. 336 ¶ 2. Plaintiff also testified that during the last three years of her employment, De Niro called her a “bitch” on approximately five occasions. Dkt. No. 307-12 at 31. Plaintiff testified that during the same period of time, De Niro called her a brat “[m]ultiple times,” Dkt. No. 303-8 at 31, often referred to his female employees as “girls,” Dkt. No. 327-3 at 32-33, and called a female business partner a “cunt,” Id. at 31-32. Plaintiff also testified that De Niro would joke with her about “his Viagra prescription” and stated that the last time such a joke had been made was in 2018. Id. at 35.

Plaintiff testified that De Niro had told her to imagine him on a toilet once in 2018. Id. Specifically, she testified that he brought her into the bathroom in the Townhouse to show her where he wanted to put the television in the bathroom; he asked her to imagine him sitting on the toilet so she would understand where he wanted the television to be placed. Id. at 35-36. Plaintiff also testified that one time in 2018, De Niro responded, after hearing that she had lifted a very large flat screen television up two flights of stairs, “that's what makes a man out of you Chase.” Id. at 36-37. Plaintiff testified that there was an incident when she and De Niro were sitting in a drawing room and discussing her career and her desire to focus on it and have “some personal time,” and De Niro stated, “Chase, women can get pregnant whenever they want. You just need to get some sperm.” Id. at 37. According to Plaintiff, De Niro then paused and said “you know, you can get some free sperm from Michael Kaplan.” Id. Plaintiff testified that she was horrified. Id.

According to Plaintiff, De Niro would urinate during telephone calls with her and “had absolutely no boundaries.” Id. at 39. Plaintiff claims that she told De Niro to stop doing it but that he did not. Id. Plaintiff also testified that De Niro directed her to scratch his back more than a dozen times, with the last such request made in 2017 or 2018. Id. at 40-41. Plaintiff stated that while she did not ever tell him that she did not like it or did not want to do it, her “face and how awkward it was could be seen,” and she at one point suggested that he use a back scratcher that he had been gifted but “he preferred” that she “scratch his back.” Id. at 41. Plaintiff also testified that De Niro would ask her to button his shirts “dozens of times when he was getting ready for an event or press,” “fix his collars,” “tie his ties,” “things like that,” and would direct her to come into the bathroom in his office, close the door, and “ask [her] to do these things.” Id. According to Plaintiff, De Niro also asked her to go into his bedroom and wake him up on occasion. Id. at 42.

Plaintiff testified that despite being named Vice President of Production and Finance, her role and job were redirected in late 2018. Id. at 86-87. She stated that her job “had been redirected to all of this gender female role where I was handling this housework, and vacuuming, and doing all of these things, and organizing closets, and washing bed sheets and making his bed.” Id. at 99. She testified that it was “incredibly demeaning and frustrating” for her. Id. She also testified that this was consistent with how other female executive assistants were treated. Id. at 82. Specifically, she stated that “female executive assistants handled [work] more centered on typically female-gendered roles. Helping [De Niro] with kid's schedules,” picking out Christmas presents, creating photo albums for his anniversary, etc. Id. at 85-86; see also id. at 40.

De Niro disputes much of Plaintiff's testimony. He stated that he never joked about his Viagra prescription, disputed telling Plaintiff that she could use Kaplan's sperm to get pregnant, and stated that he never called Plaintiff a “bitch” or his business partner a “cunt.” Dkt. No. 322-91 at 59, 131, 134-35. De Niro did not remember if he stated that manual labor would make a man out of Plaintiff, but stated “if I did, what's wrong with saying that?” Id. at 135. De Niro stated that he “might have” called Plaintiff a brat and that if he urinated while on the phone with Plaintiff, it was unintentional. Id. at 131, 148. De Niro further stated that he never would have asked Plaintiff to come into his bedroom to wake him up, button his shirts, fix his collars, or tie his tie. Id.at 152.

III. Evidence Relevant to Canal's Allegations

Canal's claims largely revolve around various actions Plaintiff took during her employment at Canal. Specifically, they concern: (i) Plaintiff's alleged improper use of Canal's credit card for transportation and food charges; (ii) payments to Plaintiff for unused vacation days that Canal claims Plaintiff was not entitled to; and (iii) a trip to Los Angeles that Plaintiff took in March 2018, which Canal claims resulted in various improper charges to Canal.[5] Canal's claims also involve Plaintiff's alleged improper transfer and retention after she resigned of approximately five million Delta SkyMiles that were generated by Canal's credit cards. The key underlying evidence relevant to each allegation is below.

A. Background Concerning Canal's Policies and Practices Concerning Employee Spending

According to De Niro, Plaintiff had “wide berth and flexibility” in her job at Canal. Dkt. No. 242 ¶ 6. De Niro noted that Plaintiff was expected to apply “principles of common sense, honesty, integrity, and diligence with Canal's best interests being first and foremost. My job was not to police her, or to suspect or operate with the assumption that she was cheating, stealing or deceiving Canal.” Id. ¶ 4. He declared that “[t]hese principles also applied to office policies which she determined. Such policies were expected to confirm to reasonable and sound business practices and would not operate or be applied in a manner that somehow gave Robinson unique and special privileges and that benefitted only her.” Id. ¶ 8.

Canal had two American Express (“Amex”) cards. One was in Plaintiff's name and was to be used only for business expenses and the other was in Kaplan's name and was to be used primarily for personal expenses for De Niro. P's 56.1 Statement ¶ 88; D's Counterstatement ¶ 88; Dkt. No. 322-88 at 67-69.

At all relevant times, Canal did not have a written policy concerning the use of Canal's credit cards. P's 56.1 Statement ¶ 91; D's Counterstatement ¶ 91 (controverting that Plaintiff's cited testimony supports this proposition but not contesting the factual proposition). De Niro described himself as “generous” with Plaintiff with regard to paying for expenses. P's 56.1 Statement ¶ 93; D's Counterstatement ¶ 93. He noted that he relied on Plaintiff's “judgment” about what to charge and stated that he did not go “into detail with” Plaintiff about what could or could not be charged, but did say to her “use your best judgment” and “let's not waste-let's not overindulge and, you know, use common sense.” Dkt. No. 322-92 at 276-79.

Canal employed accountants from Berdon to provide an array of services for Canal. One of those services was paying bills for Canal, including Amex bills. Dkt. No. 285-4 at 60, 63. Tasch from Berdon testified that Berdon would look at Canal's credit card statements before paying the credit card bills. Dkt. No. 344-14 at 107. He testified that they looked at the bills to make sure they were correct on their face, that the “totals [were] correct,” that there “[we]ren't duplicate charges,” and “[t]hings like that.” Id. at 111-12. He stated that if there was a suspicious charge on the credit card statements, they would talk to Plaintiff about it. Id. at 114. He also stated that they never received the underlying receipts for the charges on the credit cards and would generally not review expenses on the credit card statements with De Niro. Id. at 115.

The Amex card in Plaintiff's name shows ninety charges to a restaurant on the Upper East Side of Manhattan named Paola's between May 2017 and April 2019, amounting to $12,696.65 for the two-year period. Dkt. No. 337 at 22; Dkt. No. 344-37. Weeks-Brittan testified that Paola's is a restaurant where Plaintiff ate dinner “often.” Dkt. No. 344-12 at 226. Likewise, $8,923.20 was charged to grocery stores, Dean & DeLuca and Whole Foods, on the same Amex card. Dkt. No. 337 at 22; Dkt. No. 344-37. During the same period, Plaintiff also charged $31,814.17 in Ubers/taxis and $5,513.05 for car services on the Amex card in her name. Dkt. No. 337 at 22; Dkt. No. 344-37. Defendants contend that while not “every charge was improper,” these charges were excessive “both in frequency and amount” and “reflect systemic abuse by an employee, who exploited and exceeded the bounds of her authority.” Dkt. No. 337 at 22-23.

Harvey and Tasch testified that it was Canal's policy that if an employee needed to take a taxi, Uber, or Lyft for a work-related reason, Canal would pay for that taxi, Uber, or Lyft. Dkt. No. 344-14 at 341; Dkt. No. 344-16 at 225. De Niro also testified that Canal would pay for employees to take taxis, Ubers, or Lyfts “if it was at night or some time which is not normal work hours.” Dkt. No. 344-2 at 276.

As to Canal's policy for paying for employee meals, Tasch, Canal's 30(b)(6) witness, stated that “as far as [he knew,] the policy” was “if they were working and especially at night or on call for Mr. De Niro that their meals would be taken care of.” Dkt. No. 307-4 at 340. Similarly, De Niro testified at his deposition that “if you're working, you could charge for dinner, of course.” Dkt. No. 307-2 at 279. Kaplan testified that “if you were working through lunch, you could charge it. Dinner was supposed to be if you were working late at the office or working late at a thing. It really wasn't working from home on something.” Dkt. No. 322-88 at 109.

Weeks-Brittan testified that she was “told that Canal paid for lunch in the office and that we should order from one place” and that she only remembered dinners being paid for “once or twice around Christmas when it was really busy.” Dkt. No. 322-86 at 128.

When Canal assistants were working in the office, they ordered their lunches on an application named Caviar. Dkt. No. 344-8 at 67. Weeks-Brittan testified that “[w]e were logged into a Caviar account on our work computers....And we could order lunch, like, from one place to the office on Caviar, which we did.” Dkt. No. 344-12 at 127. Weeks-Brittan also testified that “[w]e got group lunch in the office. If [Plaintiff] wasn't there, she would get her own lunch either on-often on Caviar. When I was with her at the apartment, she ordered on Caviar.” Id. at 146, 225-26. Weeks-Brittan testified that Canal staff generally did not buy De Niro's groceries as he had “home staff.” Id. at 222.

The expenses at issue were classified and logged by Canal's accountants as business expenses in Canal's general ledger. P's 56.1 Statement ¶ 102; D's Counterstatement ¶ 102. Since Plaintiff's employment at Canal ended, Canal has not amended its tax returns to disclaim these tax deductions. P's 56.1 Statement ¶ 104; D's Counterstatement ¶ 104.

C. Payments for Unused Vacation Days

1. Canal's Policy/Approach to Payment for Unused Vacation Days

Canal had a policy of paying certain employees for unused vacation days, P's 56.1 Statement ¶ 153; D's Counterstatement ¶ 153, which Kaplan claims that Plaintiff instituted, Dkt. No. 327-88 at 185. While Plaintiff was employed by Canal, Robinson was one of the two employees who Canal paid for unused vacation days under this policy. P's 56.1 Statement ¶ 154; D's Counterstatement ¶ 154. There is no evidence that Canal had a written policy concerning the circumstances under which employees were entitled to be paid for unused vacation days and holidays. P's 56.1 Statement ¶ 155; D's Counterstatement ¶ 155. Harvey also testified that he was not aware of De Niro ever orally spelling out the circumstances in which Canal employees would be paid back for unused vacation days or holidays. Dkt. No. 307-6 at 255. The idea for the policy, according to Kaplan, was that they were “working all the time and missed out on vacation.” Dkt. No. 327-88 at 188.

De Niro's testimony on exactly what his expectations were concerning unused vacation days is the following. At his deposition, De Niro testified that he would pay Plaintiff for days she worked regardless of where she performed the work. Dkt. No. 307-3 at 501. Accordingly, he stated that if Plaintiff performed work for him in London, Spain, or Los Angeles, she would be paid just as much as if she had been working in New York. Id. De Niro also testified, in response to the question of whether if Plaintiff ended up working on a day that she was supposed to be on vacation, it would be treated it as a working day or a vacation day:

I would-if she said it was a vacation day and she is working, I would say “Okay. Then you know what you do. You charge me for the time that you're working.” She-what I always noticed is that she was always working, always working, doing this, doing that, always kind of intimating to everybody how hard she worked.

I said okay. She was charging me. I paid her well. Probably more than I should have, but I said okay.

So what can I say? If she tells me she is working or she claims she is working, [“]I top of it [sic], so I'm owed a vacation day.”

She, to me, as I learned as time went on, finagled a little bit, schemed a little. Okay. You know, even that I will allow.

But there is a point where you just are doing too much. You're overreaching too much, taking advantage too much. And you get tired of it. That's all. So that's why I was relieved when she, she resigned.

Id. at 508. De Niro testified further: “I left it up to her totally. She decided her work hours. She decided everything. And I trusted her. Do you understand?” Id.

De Niro also testified that it was common, “if need be,” for him and Plaintiff to speak on holidays. Dkt. No. 307-1 at 94-95. De Niro testified that Plaintiff would keep him apprised if she left New York but that he wanted “to accommodate her” by letting her work remotely and “make her happy” and so “with the internet and technology these days, [he] said okay.” Id. at 95-96. De Niro also testified that when Plaintiff was away from New York, she was still available to work for him. Id. at 96. Plaintiff similarly testified that De Niro and she had an agreement that she would work for him while she was away. Dkt. No. 307-12 at 83. She stated that “[t]here were very, very, few vacation days or days off that [she] took while [she] worked Canal” and she was “expected to be on call 24/7.” Id.

In a supplemental declaration submitted in opposition to Plaintiff's motion for summary judgment, De Niro states that:

Principles of trust and integrity [] applied to my expectations regarding paid vacation days. Ms. Robinson managed Canal's office and was charged with administering its vacation policies. I trusted Ms. Robinson to set and administer such policies in an honest and ethical manner. Important to me was that Canal operated smoothly and efficiently as my schedule is complicated, fast-moving and can change abruptly. If an employee was literally unable to take allotted vacation time, it would be my expectation that they should be paid for the unused day(s).

Dkt. No. 351 ¶ 23. He continues that “applying honesty, integrity, logic and common sense, I would expect that if Ms. Robinson was able to travel to take a vacation four weeks per year, incidental work while she was away would not negate the fact that she was on vacation.” Id. He states that during vacations, Robinson also was not required “to perform tasks that were either unnecessary or which could be performed upon her return” and “she had full discretion to assign more important tasks or those that required immediate attention to other Canal employees that were in Canal's office was [sic] she was vacationing.” Id. He also notes that Plaintiff was aware of his vacation schedule and was instructed to align her vacation with his own as work would

27

“ease while” he was on vacation, and thus it was “even less likely that she would be required to work while on vacation.” Id. ¶ 24.

2. Plaintiff's Payment for Unused Vacation Days

At the end of each year, Plaintiff would have a discussion with De Niro about the reimbursement that she would receive for unused vacation days. P's 56.1 Statement ¶ 166; D's Counterstatement ¶ 166. De Niro testified that he would generally take her at her word for how many days she worked while on vacation. Dkt. No. 327-94 at 514-17. Following these discussions, Plaintiff sent emails to De Niro and Canal's accountant setting forth the amounts to be paid for her unused vacation days. P's 56.1 Statement ¶ 167; D's Counterstatement ¶ 167. De Niro authorized the payments to Plaintiff for all of the unused vacation days that she identified in the emails that she sent to De Niro and Canal's accountant. P's 56.1 Statement ¶ 168; D's Counterstatement ¶ 168.

While she was employed by Canal, Plaintiff traveled frequently and logged vacations on her timesheets. See Dkt. No. 344-12 at 86 (Weeks-Brittan testifying that Plaintiff “would turn down vacation day requests for me and Gillian, and went to Spain, and London during her time. I viewed those as vacations.”); Dkt. Nos. 308-1-308-3. However, in 2014, Plaintiff claimed that she took three of her nineteen vacation days; in 2015, Plaintiff claimed that she took one of her nineteen vacation days; in 2016, Plaintiff claimed that she took zero of her nineteen vacation days; in 2017, Plaintiff claimed that she took zero of her twenty vacation days; and in 2018, Plaintiff claimed that she took zero of her twenty-three vacation days. Dkt. No. 322-57 at ECF pp. 2, 5, 6-9.

Canal claims that Plaintiff's representations that she took none of her vacation days for these years was improper as “she equated any work performed on vacation as negating it as a vacation day.” Dkt. No. 337 at 13 (emphasis in original). Canal also argues that Plaintiff would work without being asked or expected to do anything and Canal disputes that Plaintiff accurately reported her working time. Id.

D. Los Angeles Trip

Plaintiff booked a round trip ticket from New York to Los Angeles using 327,500 of Canal's SkyMiles, which was scheduled to leave on Friday, March 9, 2018, and to return via a red eye leaving the night of Monday, March 12, 2018, and arriving the morning of Tuesday, March 13, 2018. Dkt. No. 344-26 at ECF pp. 1-5, 7-9, 11-12. On Sunday, March 11, 2018, the trip was rescheduled so that Plaintiff would return via a red eye flight arriving in New York on the morning of Monday, March 12, 2018. Id.; Dkt. No. 344-6 at 242.

During the trip, Plaintiff rented a BMW for two days for a total cost of $729.28, Dkt. No. 344-29 at ECF p. 7, charged $2,608.86 at the Montage Hotel in Beverly Hills, and charged a $604.91 meal and an approximately $156 meal at Nobu Los Angeles on March 9, 2018. Dkt. No. 344-31 at ECF pp. 17-18; Dkt. No. 344-6 at 242. During her deposition, Plaintiff stated that the dinner at Nobu was a dinner with Amelia Brain, a former Canal employee, and one or two friends. Dkt. No. 344-6 at 75-76, 242. Kaplan testified that it was Brain's birthday the week of Plaintiff's trip. Dkt. No. 327-88 at 340.

The parties have differing accounts of the purpose of this trip. According to Plaintiff, De Niro directed her to travel to Los Angeles in March 2018 because he was encouraging his former partner to undergo medical treatment there, and he wanted Plaintiff to scout potential hotels to accommodate her. Dkt. No. 304 ¶ 4. Plaintiff states that prior to the trip, she asked De Niro's travel agent to place the JW Marriott on hold to have as one potential hotel option for De Niro's former partner, and that she did so as a precaution to ensure that the room would be available for De Niro's former partner starting in early April 2018, less than a month after the trip. Dkt. No. 363 ¶ 4. She claims that after De Niro directed her to take the trip to Los Angeles, he suggested that, as an additional task during the trip, Plaintiff could accept a delivery of books related to De Niro's movie “Taxi Driver” that De Niro was having sent to Los Angeles. Dkt. No. 344-6 at 242. However, Plaintiff claims that after arriving in Los Angeles, she learned that a snowstorm was expected to hit New York on March 12, 2018. Id. She states that she then spoke to De Niro on Sunday, March 11, 2018, and he authorized her to return to New York that day so that she would not get stranded in Los Angeles, even if it meant that she would not be able to scout the JW Marriott and accept delivery of the so-called “Taxi Driver” books. Id.

Kaplan testified that “scout[ing] hotels is not something we ever did” and he recalled that Plaintiff was “going out there to bring the Taxi driver books.” Dkt. No. 327-88 at 340-41. Kaplan also testified that De Niro's former partner had stayed in Los Angeles “plenty of times” and regularly stayed at the JW Marriott in Santa Monica. Id. at 484-85.

There are some discrepancies between De Niro's declaration and his deposition testimony concerning the purpose of the trip. In his declaration, De Niro asserts the following. In or about February 2018, Canal purchased several limited-edition photographic books titled “Taxi Driver” that were going to be autographed by himself and others involved with the film. Dkt. No. 351 ¶ 12. The books were to be donated to charity or given as gifts. Id. By the end of February 2018, the Taxi Driver books had been signed by actors in New York City and signatures were required from some individuals in California, although there was no rush or deadline by which the signatures had to be obtained. Id. ¶ 14. Originally, the plan was for Brain, a former Canal employee in California, to take delivery of the books and gather autographs, but Plaintiff offered to accept delivery of the books when they arrived, as she would be in California at that time. Id. ¶ 15. De Niro states that at no time in 2018 did he ever ask or direct Plaintiff to travel to California to “scout” hotels for his former partner and it was known by him and others at Canal that accommodations were made at the JW Marriott in Santa Monica. Id. ¶ 16. He also states that he did not authorize Plaintiff, for purposes of the Los Angeles trip, to stay at the Montage in Beverly Hills, rent a car, or dine at Nobu-all at Canal's expense. Id. ¶ 17.

In his testimony, however, De Niro stated that he was not sure whether he reached out to Plaintiff in March 2018 to identify a hotel that would accommodate his former partner, but stated at his deposition that he had “some thoughts about it.” Dkt. No. 344-2 at 352. He stated that the hotel for his former partner was already booked before Plaintiff went on the trip and recalled that the purpose of the trip was “for the Taxi Driver books.” Id. He then stated that Plaintiff “would have suggested” she could go out to Los Angeles to pick up “the Taxi Driver books.” Id. at 35255. De Niro did not remember whether he approved Plaintiff coming back early from the trip due to a snowstorm. Id. at 356-57. De Niro, who is a part owner of Nobu, also stated that if a Canal employee went to Nobu, it was not a “hard and fast rule across the board” that he would “pay for it”; it was “something that was asked” and he would say it was okay. Dkt. No. 344-3 at 488. He also testified that he rarely authorized Plaintiff to take employees out for meals at Nobu, although he “might have” authorized Plaintiff to take Brain out for dinner at some point in time (although he did not specify when that would have been). Id. at 489.

Canal's Amex credit cards generated Delta SkyMiles that could be used for travel. P's 56.1 Statement ¶ 214; D's Counterstatement ¶ 214. Canal would at times pay for certain of Plaintiff's air travel using SkyMiles generated by its credit cards. P's 56.1 Statement ¶ 218; D's Counterstatement ¶ 218; Dkt. No. 303-2 at 357-58 (De Niro's deposition). Plaintiff was also able, on or after January 10, 2019, to transfer SkyMiles from Canal's Amex credit cards to her personal account. P's 56.1 Statement ¶¶ 233-34; D's Counterstatement ¶¶ 233-34. De Niro testified that he had flown on Delta only a “few times.” P's 56.1 Statement ¶ 218; D's Counterstatement ¶ 218 (not disputing this statement, although claiming that this fact is “immaterial”).[6] De Niro preferred to travel on private, rather than commercial, flights. When flying commercial, De Niro preferred to travel in first class, but Delta flights do not offer first class travel. P's 56.1 Statement ¶ 218; D's Counterstatement ¶ 218 (not disputing this statement, although claiming that this fact is “immaterial”).

De Niro testified that he never communicated any hard and fast limits on Plaintiff's use of SkyMiles, although Plaintiff had to keep him informed of what she was doing. Dkt. No. 3032 at 380-81. He stated:

I never, I never communicated that because I trusted her. So, but she had to tell me if she was intending to go say to Australia, are you going for business for me or are you going to look for a hotel. If that was the case, if I was doing a movie there, which I wasn't, or are you going there for own [sic] private thing.

Then you say well, can I use the air miles. How many air miles is that and what does it cost me because I want my kids to be able to use them. Well, it would be this. Well, that's dipping into my kids' things. So I you [sic] better just-well, I think you can take part and that's it.

No, we would and could negotiate like that. So I trusted her, though, but she knew she had to tell me where she's going, what's she is doing.

Id. at 384. De Niro also testified that Plaintiff could book her travel using Canal's SkyMiles “if it related to the business for me, for what I'm doing for Canal.” Dkt. No. 322-92 at 384.

In the ten weeks prior to Plaintiff's resignation, Plaintiff transferred 4,995,000 SkyMiles to her own personal account from Canal's. Dkt. No. 344-25 at 9-16. Plaintiff did not return those SkyMiles after she resigned. Dkt. No. 351 ¶¶ 19-25. De Niro states in a declaration that he never discussed such a transfer with Plaintiff. Nor did Plaintiff ask for permission to move approximately five million of Canal's SkyMiles to her personal account in 2019. Id. ¶ 20. He
also states that neither he nor Robinson had a conversation about whether she could retain any SkyMiles that remained in her account should she resign her employment. Id. ¶ 19.

PROCEDURAL HISTORY

On August 17, 2019, Canal filed a complaint against Plaintiff in the Supreme Court of the State of New York, County of New York (“State Court Action”), asserting claims for breach of fiduciary duty, breach of the duty of loyalty, conversion, and fraud. Dkt. No. 322-96. On October 3, 2019, before answering the complaint in the State Court Action, Plaintiff filed a complaint in this Court against Defendants (“Complaint”), asserting the following claims: (1) gender discrimination in violation of the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107; (2) retaliation in violation of NYCHRL, N.Y.C. Admin. Code § 8-107; (3) violation of the Equal Pay Act, 29 U.S.C. § 206(d); (4) violation of the New York Equal Pay Law, N.Y. Labor Law § 194; (5) unlawful failure to pay overtime compensation in violation of New York Labor Law (“NYLL”); (6) retaliation in violation of NYLL; and (7) retaliation in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215. Dkt. No. 1 ¶¶ 50-105; see also Dkt. No. 72 at 2. On January 21, 2020, Defendants filed an answer to the Complaint. Dkt. No. 12.

Plaintiff then filed a motion to dismiss or, alternatively to stay, the State Court Action on the basis that there was substantial overlap between the claims in the two lawsuits and the claims were more appropriately tried in the federal case. Dkt. No. 72 at 2. On December 2, 2020, the motion for a stay was granted and, in April of 2021, Defendants moved to amend the answer in the present lawsuit so as to assert counterclaims identical to the claims asserted in the State Court Action. Dkt. Nos. 43, 45, 58; Dkt. No. 72 at 2-3. Magistrate Judge Katharine Parker, to whom this case was referred for general pretrial work, granted the motion. Dkt. No. 72.

Defendants filed their amended answer and counterclaims on July 28, 2021. Dkt. No. 73. In that amended answer, Canal included the same claims it had asserted against Plaintiff in the State Court Action as counterclaims, specifically claims for breach of fiduciary duty, breach of the duty of loyalty, conversion, and fraud. Dkt. No. 73. Plaintiff filed her answer to the counterclaims on August 18, 2021. Dkt. No. 77.

On April 1, 2022, Defendants filed a motion for sanctions requesting that the Court dismiss, with prejudice, Plaintiff's equal pay claims under federal and state law and Plaintiff's claim seeking overtime compensation under NYLL on the basis that they were frivolous and should never have been filed. Dkt. Nos. 195, 196. On July 13, 2022, Magistrate Judge Parker issued a report and recommendation, recommending that this Court deny the motion. Dkt. No. 240. As to Plaintiff's equal pay claim, Magistrate Judge Parker found that the claim “passe[d] the red face test” although she noted “[i]t may ultimately be a long shot to survive summary judgment.” Id. at 7. As to Plaintiff's overtime claim, Magistrate Judge Parker stated that “while it is clear Defendants have strong arguments on the merits to defend against Plaintiff's overtime claim, the claim is not so frivolous that Plaintiff should be sanctioned for raising it or not withdrawing it up to now.” Id. at 13. This Court adopted Magistrate Judge Parker's report and recommendation in its entirety and denied Defendants' motion for sanctions on October 12, 2022. Dkt. No. 272.

On September 28, 2022, the parties jointly filed a stipulation of dismissal of certain claims. Dkt. No. 268. Specifically, Plaintiff stipulated that her claims for unequal pay under the Equal Pay Act and the New York Equal Pay Act as well as her claim for failure to pay overtime under NYLL were voluntarily dismissed with prejudice. Id. Canal, in turn, voluntarily dismissed, with prejudice, its counterclaim for fraud. Id.

3 On October 30, 2022, Plaintiff filed her motion for summary judgment on Canal's remaining counterclaims along with supporting documentation. Dkt. Nos. 281-83, 285-87. On the same date, Defendants filed their motion for summary judgment on Plaintiff's remaining claims along with supporting documentation. Dkt. Nos. 284, 288-97.[7] Plaintiff filed a memorandum of law in opposition to Defendants' motion for summary judgment on November 20, 2022, as well as supporting documentation. Dkt. Nos. 333-36, 338-39, 341. On the same date, Canal filed its memorandum of law in opposition to Plaintiff's motion for summary judgment as well as supporting documentation. Dkt. Nos. 337, 340, 342-44. Defendants filed a reply memorandum of law in support of their motion for summary judgment as well as supporting documentation on December 15, 2022. Dkt. Nos. 356-57, 359, 361. On that same date, Plaintiff filed a reply memorandum of law in support of her motion for summary judgment as well as supporting documentation. Dkt. Nos. 360, 362-64.[8]

On December 22, 2022, Plaintiff filed a motion for leave to file a surreply to Defendants' motion for summary judgment. Dkt. No. 365. In that motion, Plaintiff argued that the Court should disregard Defendants' arguments, asserted for the first time in their reply, for summary judgment on Plaintiff's claims that they retaliated against her for complaining about genderbased pay disparities in violation of federal and New York State and City law. Id. at 1. Plaintiff also argued that even if the Court elected to consider these arguments, Defendants' arguments failed on their merits. Id. at 2. Plaintiff also moved to strike Defendants' appendix filed with its reply brief. Id. at 8. On April 10, 2023, the Court granted the motion in part and denied it in part. Dkt. No. 373. The Court noted: “The request to file a surreply is granted and the surreply shall be deemed filed. The requests, however, to strike Defendants' argument regarding retaliation concerning gender-based pay disparities and the Appendix are denied.” Id. The Court noted that Defendants could respond to any arguments in the surreply at oral argument on the motions. Id. Oral arguments on the motions occurred on April 20, 2023.

On May 9, 2023, the Court asked for supplemental briefing as to Defendants' motion for summary judgment. Dkt. No. 378. Specifically, the Court asked that the briefing “focus exclusively on the question whether, assuming that the Court concludes that no reasonable jury could find that Canal's filing of the State Court Action itself constituted illegal retaliation in violation of the Fair Labor Standards Act, the New York Labor Law, or the New York City Human Rights Law, Plaintiff's claim can be sustained on the grounds that the request for $3 million on a faithless servant theory and $3 million for the value of funds and property allegedly misappropriated by Plaintiff, for a total of $6 million, constitutes illegal retaliation.” Id. The parties each submitted supplemental briefs addressing this question on May 17, 2023. Dkt. Nos. 379-80.

Outcome: After five hours of deliberations, the jury also found Mr. De Niro’s company liable for Ms. Robinson’s claim of retaliation, which revolved around a dispute in 2019 between her and Mr. De Niro’s girlfriend that ultimately resulted in Ms. Robinson’s resignation from the company she had worked at for more than a decade. The jury did not find Mr. De Niro as an individual liable for either gender discrimination or retaliation.

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