Phillips v. Fashion Institute of Technology: Revival, Sanction, Costs

In Phillips v. Fashion Institute of Technology, a Black payroll worker’s race discrimination and retaliation lawsuit against the New York school ended with most of her claims dismissed but one piece still alive: the Second Circuit revived her retaliatory hostile work environment claims against a co-worker for trial, while affirming dismissal of everything against FIT itself and her supervisor. In March 2025, the trial court entered final judgment for FIT and ordered Phillips to pay $15,983.75 in costs.¹

What Phillips Alleged

Marjorie Phillips had worked at FIT since 1995.² She filed suit in January 2020 in the U.S. District Court for the Southern District of New York, naming FIT, her supervisor Mary Davis, and her co-worker Marilyn Barton.³

Phillips said she was passed over for a promotion in 2017 for racial reasons after discussing the role with Davis, and that Barton had harassed her on the basis of race starting with an incident in November 2016. In March 2018 she filed an internal Affirmative Action complaint. She alleged that retaliation followed and came to a head in May 2019, when Barton threatened to kill her during a workplace confrontation — a threat Phillips tied directly to her pending complaint.² Separate reporting noted Phillips also alleged a FIT official told her, “You look like you are going to the hood.”⁴

Her claims arose under Title VII, 42 U.S.C. § 1981, the New York State Human Rights Law, and the New York City Human Rights Law.²

The 2023 Dismissal

On March 15, 2023, Judge George B. Daniels granted summary judgment to all three defendants on every claim, ending the case at the trial-court level.³ Phillips appealed.

What the Second Circuit Revived

On March 8, 2024, the Second Circuit split the case. It affirmed dismissal of all claims against FIT and Davis, finding insufficient evidence that the institution knew about Barton’s conduct and failed to act. But it reversed dismissal of the retaliatory hostile work environment claims against Barton individually and sent them back for trial.⁵

The appellate court found Phillips’s internal Affirmative Action complaint was protected activity because she had a good-faith, reasonable belief she was reporting unlawful discrimination. Barton admitted she knew about the complaint. A reasonable juror could conclude that Barton’s death threat, even as a single incident, was “materially adverse” because it was “extraordinarily severe.” And the causal link was supported by Barton’s own words: she had called Phillips’s earlier complaint the “last straw” before making the threat. The court held Phillips met the standard for her Section 1981, NYSHRL, and NYCHRL retaliation claims against Barton, and that Barton offered no legitimate, non-retaliatory explanation.²

Final Judgment and Costs Award

With the appeals court’s ruling in hand, FIT asked the district court to enter formal final judgment on the claims against it and Davis, and to award litigation costs. Magistrate Judge Sarah Netburn recommended granting both requests on August 30, 2024. She found the remaining retaliation claims against Barton could not be imputed to FIT, so separating the resolved claims under Federal Rule of Civil Procedure 54(b) was appropriate.¹

Netburn recommended $15,983.75 in costs to FIT for court reporter deposition transcript fees. Phillips asked for a reduction based on financial hardship. Netburn rejected the argument, noting Phillips was of “modest means” but not indigent: she earned roughly $93,000 a year, took home about $3,700 per month, and had nearly $500,000 in savings and retirement accounts.¹

Neither side objected. On March 3, 2025, Judge Daniels adopted the recommendation in full, entering final judgment for FIT and Davis and ordering Phillips to pay the $15,983.75.¹

Sanction Against Phillips’s Attorney

During the litigation, Phillips’s attorney, Derek Sells of The Cochran Firm, was sanctioned for violating Rule 4.2(a) of the New York Rules of Professional Conduct, which bars a lawyer from communicating directly with a person known to be represented by counsel. The court warned Sells that he could be referred to a disciplinary grievance body.⁶

Where the Case Stands

The retaliation claims against Marilyn Barton remain active following the Second Circuit’s remand. The available record does not show a trial date or a settlement.¹ Any trial will be narrow: whether Barton retaliated against Phillips through a hostile work environment after Phillips filed her internal discrimination complaint. FIT itself is no longer a defendant.

1
Casemine. Phillips v. The Fashion Inst. of Tech., 20 Civ. 00221 (GBD)(SN)
2
Midpage. Phillips v. Fashion Inst. of Tech.
3
Law360. NY’s Fashion Institute Defeats Worker’s Promotion Bias Suit
4
Inner City Press. Phillips v. Fashion Institute of Technology
5
Law360. 2nd Circ. Reopens Black Worker’s Retaliation Suit
6
New York Law Journal. Lawyer Sanctioned for Violating Responsibility Rule, Warned of Referral to Grievance Body