source: Caselaw Access Project

author: DEBRA ANN LIVINGSTON, Circuit Judge: POOLER, Circuit Judge,

license: Public Domain

text:
    Hassan EL-NAHAL, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. David YASSKY, Commissioner Matthew Daus, Michael Bloomberg, The City of New York, Defendants-Appellees.
    No. 14-405-cv
    August Term 2014
    United States Court of Appeals, Second Circuit.
    Argued: December 11, 2014
    Decided: August 26, 2016

      DANIEL L. AokmaN, Law Office of Daniel L. Ackman, New York, N.Y., for Plaintiff-Appellant.
    Elizabeth S. Natrella, for Zachary W. Carter, Corporation Counsel of the City of New York (Richard Dearing, Pamela Seider Dolgow, on the brief), New York, N.Y., for Defendants-Appellees.
    Before: POOLER, LIVINGSTON, and DRONEY, Circuit Judges.
   Judge POOLER concurs in part and dissents in part in a separate opinion.

DEBRA ANN LIVINGSTON, Circuit Judge:

Plaintiff-Appellant Hassan El-Nahal (“El-Nahal”), a New York City taxi driver, brought a ’ 42 U.S.C. § 1983 suit in the United States District Court for the Southern District of New York (Forrest, /.), principally alleging that the New York City Taxi and Limousine Commission (“TLC”) — through Defendants-Appellees Matthew Daus, a former chairman of the TLC; David Yassky, then-chairman of the TLC; Michael Bloomberg, then-Mayor of New York City; and the City of New York (collectively, “Defendants”) — had deprived him of his Fourth Amendment rights in various ways. As relevant to this appeal, El-Nahal argued that the TLC’s mandate that all New York City taxicabs install technology systems equipped with Global Positioning System (“GPS”) tracking abilities amounted to a property-based search pursuant to United States v. Jones, — U.S.-, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), and that this search violated his Fourth Amendment rights. The District Court granted summary judgment to Defendants on all of El-Nahal’s Fourth Amendment claims, including his Jones claim, which is the only issue before us on appeal. Because the record is devoid of evidence as to whether El-Nahal had any interest in a taxi at the time of an alleged trespass or physical intrusion, El-Nahal failed to make a sufficient showing on an essential element of his property-based Fourth Amendment claim and Defendants were entitled to summary judgment. Accordingly, we AFFIRM the district court’s grant of summary judgment to Defendants.

I.

A. Background

The TLC is an agency of the City of New York that is tasked with the “regulation and supervision of the business and industry of transportation of persons by licensed vehicles for hire in the city.” N.Y.C., N.Y., Charter ch. 65, § 2303a. Its duties include the regulation of “rates,” “standards and conditions of service,” “Requirements of standards of safety and ... efficiency in the operation of vehicles and auxiliary equipment,” and the “establishment of ... [a] uniform system of accounts,” which entails “the right ... to inspect books and records and to require the submission of such reports as the commission may determine.” Id. § 2303b. Pursuant to the New York City Administrative Code, the TLC may promulgate rules as necessary to implement its authority. N.Y.C., N.Y., Code § 19-503(a).

In 2004, the TLC promulgated a rule requiring that all New York City taxicabs begin to use a Taxicab Technology System (“TTS”), a physical device located in the backseat of taxicabs that would, among other things, provide credit and debit card payment services for customers, as well as transmit to the TLC electronic data about trips made by taxi drivers gathered by means of GPS. See N.Y.C., N.Y., Rules tit. 35, § 1-01 (2010). Through the TTS, the TLC would collect — only when drivers were on duty — “the taxicab license number; the taxicab driver’s license number; the location of trip initiation; the time of trip initiation; the number of passengers; the location of trip termination; the time of trip termination; the metered fare for the trip; and the distance of the trip.” Id. § 3-06(b). Prior to the implementation of the TTS rule, the TLC required drivers to provide this same information in the form of handwritten trip records. The TTS rule mandated that taxicab medallion owners procure TTSs in their taxis by August 1, 2007. Id. § l-ll(g).

Around the same time as the TLC promulgated the TTS rule, the TLC also established a new system for taxi fare “rate codes,” corresponding to different types of fares a taxi driver may charge. Rate Code 1, for instance, is the standard New York City rate and is used for fares from point-to-point within New York City. Rate Code 4, meanwhile, doubles the fare for each additional unit driven, and may be engaged by a taxi driver only under certain circumstances upon entering Nassau or West-chester County.

In March 2010, the TLC issued a press release announcing that it had discovered that some taxicab drivers were using the Rate Code 4 setting to overcharge passengers. “Using GPS technology installed in taxicabs,” the press release explained, the “TLC has discovered 1,872,078 trips where passengers were illegally charged the higher rate” by 35,558 drivers for a total of $8,330,155 in alleged overcharges. J.A. 135. The press release qualified this finding by noting that “there were 361 million taxi trips during that time period, so the illegal fare was only charged in 0.5% of all trips,” and that the alleged “scam was primarily perpetrated by a small number of drivers, with 3,000 drivers overcharging more than 100 times.” Id.

Two months later, in May 2010, the TLC issued a second press release that modified its initial findings, announcing that the “TLC’s completed analysis” revealed that “21,819 taxicab drivers overcharged passengers a total of 286,000 times ... for a total estimated overcharge of almost $1.1 million.” J.A. 146. The press release added that the TLC believed that 13,315 out of the 21,819 drivers had “engaged in overcharging just one or two times,” but that it expected “to be able to prove that some drivers engaged in 1,000 or more overcharges.” Id. In response to the scandal, the Manhattan District Attorney’s office arrested 59 drivers “for defrauding and stealing from their customers,” J.A. 150, and the TLC programmed passenger screens to display “a highly visible alert that advises riders when the higher, out of town rate is activated,” J.A. 151. The TLC also brought administrative actions against many drivers.

Among those who faced administrative charges was El-Nahal, who at that point had been a taxi driver for more than twenty years. On January 3, 2012, the TLC sent El-Nahal a letter directing him to appear for a settlement conference in reference to allegations that he overcharged passengers on 10 occasions between November 20, 2009 and February 22, 2010 by improperly using the Rate 4 code. El-Nahal contested the allegations. On May 7, 2012, an administrative law judge found, based on trip records the TLC allegedly obtained via GPS, that El-Nahal violated the TLC’s rules on six occasions. The administrative law judge thus imposed upon El-Nahal $550 in penalties and revoked El-Nahal’s TLC license to drive taxis. On appeal, the Office of Administrative Trials and Hearings Taxi and Limousine Tribunal Appeals Unit (“Appeals Unit”) overturned the penalty, ruling that the administrative law judge’s decision was “not supported by substantial evidence.” J.A. 187. The TLC then re-filed regarding one violation, and the administrative law judge found El-Nahal not guilty. Undeterred, the TLC re-filed five other charges against El-Nahal, and a different administrative law judge once again found El-Nahal guilty, imposed a fine, and revoked his license. El-Nahal again appealed, and the Appeals Unit again overturned the administrative law judge’s decision on the ground that the administrative law judge’s findings with respect to El-Nahal’s alleged intent to overcharge were insufficient. Nonetheless, the TLC re-filed charges against El-Nahal once more. An administrative law judge yet again found El-Nahal guilty, based in part on GPS trip records and Google maps, and the Appeals Unit yet again reversed the decision on appeal. In reversing, the Appeals Unit dismissed the charges with prejudice and emphasized that the GPS evidence used to convict El-Nahal could not, by itself, show that El-Nahal “intended to overcharge, only that he did overcharge.” J.A. 216.

B. Procedural History

On May 31, 2013, El-Nahal filed his complaint. As relevant here, the complaint alleged that “[t]he installation and use of [the] GPS device [through the TTS] ... constitutes a[n unlawful] search under the Fourth Amendment.” J.A. 34. The complaint also alleged violations of the New York Constitution, Article 78 of the New York Civil Practice Laws and Rules, the New York City Charter, and New York common law.

On August 21, 2013, Defendants moved to dismiss El-Nahal’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Attached to the motion were seventy-two pages of exhibits. At an initial pretrial conference held on September 13, 2013, Judge Forrest converted Defendants’ motion to dismiss into a motion for summary judgment and directed El-Nahal to file his opposition to Defendants’ motion for summary judgment and his own motion for summary judgment by September 24, 2013. On September 24, 2013, El-Nahal cross-moved for partial summary judgment with respect to his § 1983 and New York Constitution claims, and opposed Defendants’ motion for summary judgment.

By order dated January 29, 2014, the district court granted Defendants’ motion for summary judgment on El-Nahal’s § 1983 claim, and dismissed the state claims for lack of supplemental jurisdiction. El-Nahal v. Yassky, 993 F.Supp.2d 460, 469-70 (S.D.N.Y. 2014). The district court held that the installation and use of the TTS did not constitute a search for the purposes of the Fourth Amendment. As to whether the challenged conduct intruded on El-Nahal’s reasonable expectation of privacy, the district court, citing our decision in Buliga v. N.Y.C. Taxi & Limousine Comm’n, 324 Fed.Appx. 82, 82 (2d Cir. 2009) (affirming a district court’s ruling that the TLC rule requiring the installation of a TTS in all taxis did not invade the plaintiffs reasonable expectation of privacy), concluded that El-Nahal had no “reasonable expectation of privacy in any of the information collected” by the TTS. El-Nahal, 993 F.Supp.2d at 465. Regarding El-Nahal’s claim that the mandatory. installation of the TTS was a search because it involved a physical intrusion for the purpose of obtaining information, the district court rejected the claim on the grounds that “taxi drivers are aware of the system, the system is installed pursuant to regulations, and the taxicabs in which the system is installed are not truly private vehicles.” El-Nahal, 993 F.Supp.2d at 467. The district court further reasoned that even assuming, arguendo, that the mandatory installation of the TTS did constitute a search for Fourth Amendment purposes, the search was justified pursuant to the “special needs” doctrine. Id. at 469. El-Nahal timely appealed.

II.

“We review an award of summary judgment de novo.” F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994). Upon proper motion, Rule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial.” Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(c) (1963) (current version at Fed. R. Civ. P. 56(a) (2010))). Thus, “[t]he moving party is ‘entitled to a judgment as a matter of law1 because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Id. at 323, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(c) (1963) (current version at Fed. R. Civ. P. 56(a) (2010))); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (noting that “the movant’s burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party’s claim”).

El-Nahal argues that the district court erred by granting summary judgment on his Fourth Amendment claim because pursuant to Jones, “[p]hysical placement of a tracking device on a private vehicle in order to obtain information is ... a search,” so that his Fourth Amendment rights were violated when “[t]he TLC mandated the physical placement of tracking devices in privately owned taxicabs.” Appellant’s Br. at 29. El-Nahal has not argued on appeal that he was subjected to a search by virtue of an intrusion on any reasonable expectation of privacy he had regarding the installation and use of the TTS. Instead, he asserts here that he “explicitly ‘rejected the premise’ of defendants’ argument below that he was required to demonstrate an invasion of privacy” and that his Fourth Amendment claim “does not depend on whether his expectation of privacy was violated.” Appellant’s Br. at 31-32. Accordingly, we address the only argument El-Nahal has presented on appeal: namely, his contention that the district court erred in concluding that summary judgment was warranted as to his property-based Fourth Amendment claim. Assuming, arguendo, that the TLC-mandated installation and use of TTS devices in taxicabs in New York City may constitute a search as to those with sufficient property-based interests in a taxicab, we conclude that the district court nevertheless properly granted summary judgment because there is no evidence in the record as to an essential element of El-Nahal’s claim on which he bears the burden of proof: namely, that he had such a property interest in a taxicab at the time a TTS was installed.

Jones itself demonstrates that a plaintiff such as El-Nahal must establish such a property-based interest. In Jones, the Supreme Court made clear that the reasonable-expectation-of-privacy test did not supplant, but merely supplemented the earlier, property-based approach to defining the circumstances in which a “search,” for Fourth Amendment purposes, has occurred. 132 S.Ct. at 949-50. There, the Government placed a GPS tracking device on the undercarriage of a Jeep that was, as the Government acknowledged, exclusively driven by Jones. Id. at 948-49 & n.2. The Government then tracked the Jeep’s movements for 28 days, using information gleaned from the tracking in Jones’s prosecution for several drug offenses. Id. at 948-49. The Jones Court instructed that pursuant to the property-based approach, a Fourth Amendment search “undoubtedly occurfs]” when the Government acts to “obtainf ] information by physically intruding on a constitutionally protected area,” id. at 950 n.3 — that is, on individuals’ “persons, houses, papers, and effects,” as enumerated in the Fourth Amendment’s text, U.S. Const. Amend. IV.

Because Government agents had physically intruded on Jones’s Jeep, which was “beyond dispute ... an ‘effect’ as that term is used in the [Fourth] Amendment,” Jones, 132 S.Ct. at 949, to plant and employ a tracking device, the Supreme Court concluded that it need not consider the reasonable-expectation-of-privacy approach in determining whether Jones was subject to a search, see id. at 950-53. Applying the property-based approach, the Court held “that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’ ” Id. at 949. Thus, Jones was subject to a search because the Government installed a GPS device on his vehicle in order to obtain information — on a vehicle that, while registered to his wife, he exclusively drove and in which (as the Court took pains to note) he “had at least the property rights of a bailee” at the time the Government installed the tracking device. Id. at 949 n.2.

The centrality of some property interest to a property-based Fourth Amendment claim is also evident in the manner in which the Jones Court distinguished United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), and United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). In Knotts and Karo, the Government had installed beepers — “radio transmitterfs], usually battery operated, which emitf] periodic signals that can be picked up by a radio receiver,” Knotts, 460 U.S. at 277, 103 S.Ct. 1081— into containers of chemicals that were thereafter tracked, and that the Government suspected would be used in connection with the manufacture of illegal drugs, see id. at 278-79, 103 S.Ct. 1081; see also Karo, 468 U.S. at 708-09, 104 S.Ct. 3296. The Government argued in Jones that Knotts and Karo “foreclosefd] the conclusion that what occurred [to Jones] constituted a search” because in these earlier cases, the Court, employing the reasonable-expectation-of-privacy approach, had determined that using a beeper to track the movement of the containers on public roads did not constitute a search. 132 S.Ct. at 951. The Jones Court disagreed, concluding that the outcomes in Knotts and Karo were “perfectly consistent” with its property-based approach to the. Fourth Amendment’s scope. Id. at 952.

As Jones explained, the Government in Knotts had installed the beeper in the container at issue “before it came into KnottsXs] possession, with the consent of the then-owner” of the container. Id. (emphasis added). Knotts did not challenge the installation, and the Court “specifically declined to consider its effect.” Jones, 132 S.Ct. at 952. Similarly, the Jones court explained that in Karo, “[a]s in Knotts, ... [t]he Government ... came into physical contact with the container only before it belonged to the defendant Karo” and with the consent of its then-owner: “Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location.” Id. (emphasis added). Jones, meanwhile, was on “much different footing” than Knotts or Karo: he “possessed the Jeep at the time the Government trespassorily inserted the information-gathering device.” Id. (emphasis added); see also Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 2.7(f) (5th ed. 2012) (noting that “the date of the requisite trespass” rather than the “period of surveillance” is critical to assessing whether a search has occurred pursuant to Jones’s property-based approach). Because the physical intrusion was upon a constitutionally protected area and was undertaken for the purpose of obtaining information, the Government’s conduct amounted to the type of property-based search that the Fourth Amendment protects against. Jones, 132 S.Ct. at 949.

To be clear, because there was no dispute in Jones that the defendant lawfully possessed the Jeep at the time it was trespassed upon, nor did the Government challenge the D.C. Circuit’s determination “that the vehicle’s registration did not affect [Jones’s] ability to make a Fourth Amendment objection,” the Jones Court had no occasion fully to consider the nature of the property interest that is sufficient to make out a property-based Fourth Amendment claim. Id. at 949 n.2. Neither need we do so here. Because we can discern no evidence at all that El-Nahal had any interest in a particular taxicab at the time of an alleged trespass or physical intrusion, we find no genuine issue of material fact warranting a trial. Summary judgment in favor of Defendants was therefore wholly proper.

During the proceedings that led to summary judgment in favor of Defendants, Defendants repeatedly stated that the property-based approach in Jones was predicated upon physical intrusion on property, and emphasized how Jones differed from Knotts and Karo. For instance, Defendants’ opening memorandum of law explained that, unlike the defendant in Jones, there was no physical occupation of El-Nahal’s property for the purpose of obtaining information because, as in Knotts and Karo, “the initial placement of the monitor was not at issue.” Defs.’ Mem. of L. in Supp. at 11, El-Nahal v. Yassky, 993 F.Supp.2d 460 (S.D.N.Y. 2014) (No. 13-cv-3690 (KBF)), ECF No. 13. Since the “physical placement of the GPS device” was not at issue, Defendants continued, Jones had “little relevance in Plaintiffs claim.” Id. It logically followed from that statement that if Jones was to have any relevance, El-Nahal had to put the placement of the GPS device at issue — a point he implicitly acknowledged in his own papers in opposition to Defendants’ motion and in support of his cross motion for summary judgment by stating that “[t]he Court’s decision [in Jones] was based on a traditional understanding of the Fourth Amendment tied to common law trespass” and “the physical attachment of the device,” Pl.’s Mem. of L. in Supp. at 15-16, El-Nahal v. Yassky, 993 F.Supp.2d 460 (S.D.N.Y. 2014) (No. 13-cv-3690 (KBF)), ECF No. 22, and that Jones “focused on the [Gjovernment’s trespass on JonesXs] vehicle,” id. at 19 (emphasis added).

Defendants thus “point[ed] out to the district court ... that there [was] an absence of evidence,” Celotex, 477 U.S. at 825, 106 S.Ct. 2548, to support “an essential element” of El-Nahal’s Jones claim, id. at 323, 106 S.Ct. 2548. It then fell to El-Nahal to “come forward with specific evidence demonstrating the existence of a genuine dispute of material fact” as to that element of his Fourth Amendment claim. Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see also Tovar v. KLM Royal Dutch Airlines, No. 98 Civ. 5178, 2000 WL 1273841, at *5-6 (S.D.N.Y. Sept. 6, 2000) (in converting defendants’ motion to dismiss to a motion for summary judgment, noting that defendants may satisfy their burden by “pointing] to an absence of evidence to support an essential element of the non-moving party’s claim,” at which point the burden “shifts to the [plaintiff] to come forward with ‘specific facts showing that there is a genuine issue for trial’ ” (quoting Goenaga, 51 F.3d at 18; Fed. R. Civ. P. 56(e))). Yet, El-Nahal adduced no evidence as to the circumstances surrounding any alleged trespass or physical intrusion on a taxicab in which he had a property-based interest.

Here, El-Nahal emphasizes that he drives a taxicab and that the TLC mandated the physical placement of a TTS in all privately owned cabs. But this is not enough to show that the physical placement of a TTS intruded on a constitutionally protected area of Elr-Nahal. Even if El-Nahal at some point drove a taxicab installed with a TTS, this fact, standing alone, is no more relevant than the fact that Knotts and Karo at some point possessed containers installed with beepers. As Jones makes plain, the possibility that the Government may have trespassed or physically intruded on someone’s property does not necessarily entitle someone else who later acquires an interest in that property to claim that the Government trespassed or physically intruded on her property.

El-Nahal provided no evidence describing his interest in a taxi at the time of an alleged trespass or physical intrusion. Beyond stating that he has been a taxicab driver for more than 20 years, El-Nahal leaves it a mystery whether he owns a taxicab medallion (and it is the owners of such medallions that TLC regulations require to equip their taxicabs with a TTS, N.Y.C., N.Y., Rules tit. 35, § 1-11(f)-(g) (2010)), rents a taxi from a corporate owner on a daily or weekly basis, or alternates driving shifts with another driver who rents a cab. Moreover, he has said nothing at all as to what interest he had in a particular taxi (if any) at the time it was installed with a TTS. Thus, so far as the record here discloses, El-Nahal may have rented a taxi after its owner contracted with a third-party provider to install' a TTS, fully cognizant of the presence of the TTS in the cab, and even taking custody of the cab on the-condition that he properly maintain the TTS while operating the taxi. Cf. Jones, 132 S.Ct. at 961 (Alito, J., concurring) (noting that “the [Jones] theory would provide no protection” if “the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car”). Jones leaves no doubt that in such a case, a property-based search claim would be lacking.

That the parameters of the property-based search theory outlined in Jones were not fully explicated in that case makes it all the more remarkable that El-Nahal has failed to adduce evidence on one aspect of Jones that is clear: to claim that the Government trespassed or physically intruded upon one’s constitutionally protected area for the purposes of gathering information, a plaintiff must establish a property interest in a constitutionally protected area at the time of the intrusion. Here, El-Nahal has provided no evidence tending to show that he had an interest in any taxi at the time of an alleged trespass or physical invasion — an element that, whether dependent on or divergent from common-law tort principles, we have described as “the touchstone for the analysis in Jones.” See United States v. Aguiar, 737 F.3d 251, 261 (2d Cir. 2013) (Pooler, J.). No reasonable jury could find for El-Na-hal on his claim that the Government’s conduct constituted a search under Jones, and there is nothing for us to do but to affirm the district court’s grant of summary judgment to Defendants. Accordingly, finding no genuine issue of material fact warranting a trial, we AFFIRM the judgment of the district court.

POOLER, Circuit Judge,

concurring in part and dissenting in part:

I concur in the majority’s excellent analysis of the line between United States v. Jones, — U.S. -, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), on the one hand, and United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), and United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), on the other hand. Indeed, had Defendants pressed the same analysis before the district court, I would join the majority in holding that Defendants had successfully shifted the burden to El-Nahal to “come forward with specific evidence demonstrating the existence of a genuine dispute of material fact” on the issue of El-Nahal’s property interest in the taxi at the time of the alleged trespass, Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011), and that El-Nahal failed to meet this burden.

I disagree, however, that Defendants “point[ed] out to the district court ... an absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The majority relies on Defendants’ statements that “the initial placement of the monitor was not at issue,” Defs.’ Mem. of L. in Supp. at 460, 469-70 (S.D.N.Y. 2014) (No. 13-cv-3690 (KBF)), ECF No. 30, that because the “physical placement of the GPS device in the vehicles is not at issue” Jones “has little or no relevance in Plaintiffs claim,” Defs. Mem. of L. in Supp. at 11, and the analysis following the heading “There Was No Trespass on Plaintiffs Person or Property Constituting a Search,” the only even arguably relevant portion of which merely again stated that “the physical placement of the GPS device in the vehicles is not at issue.” Defs.’ Reply Mem. of L. in Supp. at 7, El-Nahal v. Yassky, 993 F.Supp.2d 460, 469-70 (S.D.N.Y. 2014) (No. 13-cv-3690 (KBF)), ECF No. 36. Thus, in 64 pages of briefing by Defendants, the only statement referring to an absence of evidence on the point of El-Nahal’s interest in the taxi at the time of the trespass is that “the physical placement of the GPS device in the vehicles is not at issue.” I, quite frankly, do not know what this statement means. While the majority draws nuanced lines between Jones and Knotts and Karo, showing the importance of an ownership interest at the time of the trespass, at most Defendants implicitly hint at such a distinction. I do not think this was sufficient to shift the burden to El-Nahal to provide evidence of his property interest in the taxi.

It is evident, moreover, that the district court did not read these statements in the same manner as does the majority, as the district court held that Jones did not control on the grounds that the trespass in Jones was surreptitious, that taxis are not truly private property, and that the system was installed pursuant to regulations. See El-Nahal v. Yassky, 993 F.Supp.2d 460, 467-68 (S.D.N.Y. 2014). Although I agree that the majority need not reach these issues, see Maj. Op. at 253 n.3, in my view, they were decided incorrectly.

As an initial matter, I cannot agree that the surreptitious nature of the intrusion was a critical factor to the holding in Jones. Beyond the fact that the Jones majority never characterized the intrusion in this manner, its reasoning expressly disclaimed any reliance on the target’s expectations regarding the possibility of surveillance. The physical invasion of a constitutionally protected area is no less actionable under the Fourth Amendment merely because it is conspicuous. See, e.g., United States v. Isiofia, 370 F.3d 226, 232-33 (2d Cir. 2004) (holding that a war-rantless home search was unconstitutional where the defendant witnessed the search and gave consent, later found to be involuntary). To hold otherwise would allow the government to conduct unreasonable searches merely by announcing them. But the government could not, for instance, eliminate the Fourth Amendment’s protection of “homes, papers, and effects” if it “were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry.” Smith v. Maryland, 442 U.S. 735, 740 n.5, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Accordingly, El-Nahal’s awareness of the GPS does not preclude the finding that the surveillance entailed a search.

Nor, in my view, is the fact that the GPS was installed pursuant to an administrative rule dispositive. On numerous occasions, the Supreme Court has addressed statutes and regulations implicating Fourth Amendment rights. For instance, in Grady v. North Carolina, — U.S.-, 135 S.Ct: 1368, 191 L.Ed.2d 459 (2015), the Supreme Court applied Jones’s, reasoning in evaluating a state statute mandating the satellite-based monitoring of certain categories of recidivist sex offenders. By unanimous opinion, the Court concluded that “a State ... conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements,” id. at 1370, a decision not changed by the fact that this search was conducted pursuant to statute. See id. at 1371 (rejecting argument that this was not unconstitutional because the “State’s monitoring program is civil in nature”); see also Maryland v. King, — U.S. -, 133 S.Ct. 1958, 1968-69, 186 L.Ed.2d 1 (2013) (considering the constitutionality under the Fourth Amendment of DNA swabs taken pursuant to Maryland statute). Most recently, in City of Los Angeles v. Patel, — U.S.-, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015), the Supreme Court struck down a city ordinance requiring hotels to permit the warrantless inspection of their guest records on the basis that it authorized a regime of unreasonable searches without opportunity for precompliance review. Id. at 2447-48, 2451-53. Plainly, the government’s physical intrusion on a constitutionally protected area is subject to Fourth Amendment scrutiny even if the intrusion is authorized by municipal regulations.

With respect to whether the taxi was constitutionally protected property, the district court answered in the negative, reasoning that “[t]he pervasive regulation of taxis and their openness to public use distinguishes them from the truly private property at issue in Jones.” El-Nahal, 993 F.Supp.2d at 467 (emphasis added). Although I agree that taxicabs differ from noncommercial vehicles in important respects, in my view, these distinctions do not strip them of all Fourth Amendment protections. If the taxi was El-Nahal’s private personal property, Jones dictates that such property qualifies as “an ‘effect’ as that term is used in the [Fourth] Amendment.” 132 S.Ct. at 949 (“It is important to be clear about what happened in this case: The Government physically occupied private property for the purpose of obtaining information.”). As such, it was entitled to special “Fourth Amendment significance” as “one of those protected areas enumerated” in the constitutional text. Id. at 953. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Id. at 950 (alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)). “The Framers would have understood the term ‘effects’ to be limited to personal, rather than real, property.” Oliver, v. United States, 466 U.S. 170, 177 n.7, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The term was not limited, however, to personal property of a noncommercial nature. It included “the goods of a merchant [or] tradesman.” Altman v. City of High Point, 330 F.3d 194, 201 (4th Cir. 2003) (quoting Dictionarium Britannicum (Nathan Baily ed., 1730)).

To recount now familiar history, “one of the primary evils intended to be eliminated by the Fourth Amendment was the massive intrusion on privacy undertaken in the collection of taxes pursuant to general warrants and writs of assistance.” G. M. Leasing Corp. v. United States, 429 U.S. 338, 355, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977). “The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of British tax laws.” Payton v. New York, 445 U.S. 573, 583 n.21, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The “particular offensiveness” engendered by these general warrant “was acutely felt by the merchants and businessmen whose premises and products were inspected for compliance with the several' parliamentary revenue measures.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) (emphasis added).

Consistent with this purpose, “[o]ur pri- or cases have established that the Fourth Amendment’s prohibition against unreasonable searches applies to administrative inspections of private commercial property.” Spinelli v. City of New York, 579 F.3d 160, 167 (2d Cir. 2009). The Fourth Amendment is therefore implicated by searches conducted by regulatory authorities involving the unlicensed “physical entry” on a business’s private property. See G. M. Leasing Corp., 429 U.S. at 354, 97 S.Ct. 619 (indicating that Fourth Amendment would be implicated by “warrantless seizure of property, even that owned by a corporation, situated on private premises to which access is not otherwise available for the seizing officer”).

The conclusion that TLC’s rule worked an unlicensed physical intrusion on a constitutionally protected effect is not altered by the taxicab’s “openness to public use.” El-Nahal, 993 F.Supp.2d at 467. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). An implied license therefore permits regulatory officials to do what “any private citizen might do,” without implicating the Fourth Amendment. See Florida v. Jardines, — U.S. -, 133 S.Ct. 1409, 1416, 185 L.Ed.2d 495 (2013) (quoting Kentucky v. King, 563 U.S. 452, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011)). A government agent, in the same manner as a private person, may hail a taxi when it is on duty and physically occupy it for the duration of a trip. See Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985). But, without the driver’s leave, a typical passenger may not dust the car’s interior for fingerprints, mount a camera on the dashboard, or rifle through the vehicle’s glove compartment to peruse the tips that other passengers have paid. “[TJhere is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to Fourth Amendment guarantees.” Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979). The Supreme Court explored a related issue in Jardines, where law enforcement officers invited a narcotics-detecting canine to sniff around a suspect’s front porch. The Court held that a Fourth Amendment search occurred because the detectives had gathered information by “physically entering and occupying” the constitutionally protected curtilage of the house, in order “to engage in conduct not explicitly or implicitly permitted by the home; owner.” Jardines, 133 S.Ct. at 1414. The dog’s investigation amounted to an “unlicensed physical intrusion,” despite the fact that custom extended an implicit license “to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Id. at 1415. “The scope of a license — express or implied — is limited not only to a particular area but also to a specific purpose.” Id. at 1416. The detectives’ conduct was therefore a search under the Fourth Amendment because they engaged in behavior that objectively exceeded the scope of their implicit license to enter while occupying a constitutionally protected area. Id. at 1416-17. Here as well, the implied license all taxis extend to the public does not encompass an invitation to install surveillance technology in their vehicles.

Accordingly, I join the majority’s analysis of Jones, Knotts, and Karo. Because I do not believe that Defendants properly put at issue El-Nahal’s interest in the- taxi at the time of the trespass, and because I disagree with the district court’s analysis of the physical trespass-based Fourth Amendment claim, I would vacate and remand for further factual development. I therefore concur in part and respectfully dissent in part.

      . Although El-Nahal filed the complaint on behalf of himself and similarly situated individuals, he at no point in the district court proceedings sought class certification.

      . The reasonable-expectation-of-privacy approach for deciding whether a search has occurred within the meaning of the Fourth Amendment derives from Justice Harlan’s concurrence in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which affirms that the Fourth Amendment protects against invasions upon an individual’s “reasonable expectation of privacy.” Id. at 360, 88 S.Ct. 507 (Harlan, J., concurring); see Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (“Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can. claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy’ that has been invaded by government action.” (citing cases)).

      . We thus affirm on an alternative ground and do not consider the district court’s con-elusions: (1) that Defendants' actions "did not constitute a search within the meaning of the Fourth Amendment ... under ... the Jones physical-trespass analysis;” and (2) that assuming, arguendo, that a search occurred, "that search was reasonable under the special-needs analysis of the Fourth Amendment.” El-Nahal, 993 F.Supp.2d at 468-69.

      .Because the Government conceded that Jones was "the exclusive driver” of the Jeep, Jones, 132 S.Ct. at 949 n.2 (quoting United States v. Maynard, 615 F.3d 544, 555 n.* (D.C. Cir. 2010), aff'd on other grounds sub nom. United States v. Jones,-U.S. -, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)), even if Jones was "not the owner” of the Jeep, the Supreme Court noted, he "had at least the property rights of a bailee,” id.

      . The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. Amend. IV.

      . Defendants reiterated this crucial aspect of Jones in their opposition to El-Nahal's cross-motion for summary judgment on the search claim. Defs.’ Mem. of L. in Opp. at 12, El-Nahal v. Yassky, 993 F.Supp.2d 460, 469-70 (S.D.N.Y. 2014) (No. 13-cv3690 (KBF)), ECF No. 30. They did so yet again in their reply memorandum in support of their own motion for summary judgment, devoting an entire section of their brief specifically to the a that "[tjhere [w]as [n]o [t]respass on Plaintiff's [p]erson or [p]roperty [cjonstituting a [s]earch.” Defs.’ Reply Mem. of L. in Supp. at 7, El-Nahal v. Yassky, 993 F.Supp.2d 460, 469-70 (S.D.N.Y. 2014) (No. 13-cv-3690 (KBF)), ECF No. 36.

      . Indeed, this point is illustrated by Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765), a case the Supreme Court has described as "undoubtedly familiar to every American statesman at the time the Constitution was adopted, and considered to be the true and ultimate expression of constitutional law with regard to search and seizure.” Jones, 132 S.Ct. at 949 (internal quotation marks omitted). In Entick, the plaintiff prevailed in an action for trespass after the King’s messengers, acting under the claimed authority of a general warrant, "with force and arms” entered and searched his dwelling "against his will.”


author: POOLER, Circuit Judge:

text:
    Deborah MOSS, on behalf of herself and all others similarly situated, Plaintiff-Appellee, v. FIRST PREMIER BANK, a South Dakota state-chartered bank, and Bay Cities Bank, a Florida state-chartered bank, Defendants-Appellants.

    Docket Nos. 15-2513-cv(L); 15-2667-cv(CON)
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: April 8, 2016
    Decided: August 29, 2016

      ERIC RIEDER, Bryan Cave LLP (Megan Awerdick Pierson, on the brief), New York, NY, for Defendant-Appellant Bay Cities Bank.
    Bryan R. Freeman, Lindquist & Ven-num LLP, Minneapolis, MN; Bryan Craig Meltzer, Herrick, Feinstein LLP, for De-fendanh-Appellant First PREMIER Bank.
    J. AUSTIN MOORE, Stueve Siegel Hanson LLP (Norman E. Siegel, Steve N. Nix, Stueve Siegel Hanson LLP; Darren T. Kaplan, New York, NY; Hassan Zavar-eei, Jeffrey D. Kaliel, Tycko & Zavareei, Washington, D.C., on the brief), Kansas City, MO, for Plaintiff-Appellee.
    Before: POOLER, LIVINGSTON, and LOHIER, Circuit Judges.

      . The Clerk of Court is respectfully directed to amend the caption as above.

   POOLER, Circuit Judge:

Deborah Moss signed an arbitration agreement providing that any disputes between her and her payday lender would be resolved by arbitration before the National Arbitration Forum (“NAF”). When she tried, to take her case to arbitration, however, NAF refused to accept it pursuant to a consent decree that prohibited NAF from accepting consumer arbitrations. The district court (Bianco, J.) construed the arbitration agreement as contemplating arbitration only before NAF and declined to compel Moss to arbitrate before a different arbitrator. We agree with the district court’s construction of the agreement and accordingly affirm. • •

BACKGROUND

Deborah Moss took out three payday loans from an online payday lender, SFS, Inc. (“SFS”). When a payday lender such as SFS agrees to loan a customer money, it relies on banks to serve as middlemen to debit the customer’s account. These banks are known as “Originating Depository Financial Institutions,” or “ODFIs.” First Premier Bank and Bay Cities Bank each served as an ODFI for one of Moss’s payday loans with SFS.

When Moss applied for the loans, she electronically signed an application that included an arbitration clause. The arbitration clause on one of the applications provided,

Arbitration of All Disputes: You and we agree that any and all claims, disputes or controversies between you and us, any claim by either of us against the other ... and any claim arising from or relating to your application for this loan, regarding this loan or any other loan you previously or may later obtain from us, this Note, this agreement to arbitrate all disputes, your agreement not to bring, join or participate in class actions, regarding collection of the loan, alleging fraud or misrepresentation ... including disputes regarding the matters subject to arbitration, or otherwise, shall be resolved by binding individual (and not joint) arbitration by and under the Code of Procedure of the National Arbitration Forum (“NAF”) in effect at the time the claim is filed.... Rules and forms of the NAF may be obtained and all claims shall be filed at any NAF office, on the World Wide Web at aww.arb-forum.com, by telephone at 800-474-2371, or at “National Arbitration Forum, P.O. Box 50191, Minneapolis, Minnesota 55405.” Your arbitration fees will be waived by the NAF in the event you cannot afford to pay them.

App’x at 168. The following notice is printed directly beneath the arbitration provision: “NOTICE: YOU AND WE WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND HAVE A JUDGE OR JURY DECIDE THE DISPUTES BUT HAVE AGREED INSTEAD TO RESOLVE DISPUTES THROUGH BINDING ARBITRATION.” App’x at 168. The other applications Moss signed contained similar arbitration clauses.

Moss filed a putative class action against First Premier Bank and Bay Cities Bank in federal court, alleging violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, and state law. In short, Moss alleged that the banks unlawfully facilitated high-interest payday loans that have been outlawed in several states.

The banks moved to compel arbitration on the basis of the arbitration agreements that Moss signed when she applied for the loans. Although the banks were not parties to those agreements, they argued that they were entitled to enforce the agreements against Moss under principles of estoppel. The district court agreed and initially granted the banks’ motion to compel arbitration and stayed the proceedings.

After the district court ordered the parties to arbitrate, Moss sent a letter to NAF indicating her intent to arbitrate her claims. NAF responded that it was unable to accept Moss’s dispute pursuant to a consent judgment that it had entered into with the Minnesota Attorney General. In 2009, the Minnesota Attorney General had sued NAF for consumer fraud, deceptive trade practices, and false advertising. The complaint alleged that, although NAF represented itself as an independent and impartial arbiter, the forum was in fact “working] alongside creditors behind the scenes ... to convince [them] to place mandatory pre-dispute arbitration clauses in their customer agreements and to appoint [NAF] as the arbitrator of any disputes that may arise in the future.” App’x at 455-56. NAF also allegedly “ma[de] representations that align[ed] itself against consumers” to solicit creditors to use its arbitration services. App’x at 457. To settle the lawsuit, NAF entered into a consent decree that prohibited it from accepting consumer arbitrations such as Moss’s.

After NAF declined to accept her dispute, Moss returned to federal court and moved to vacate the district court’s order compelling arbitration, arguing that she could not arbitrate her claims because NAF declined to arbitrate her case. The district court granted the motion. See Moss v. BMO Harris Bank, N.A., 114 F.Supp.3d 61, 63 (E.D.N.Y. 2015). The court concluded that the language of the arbitration agreements reflected the parties’ intent to arbitrate exclusively before NAF. Id. at 66. The court further concluded that, under this Court’s decision in In re Salomon Inc. Shareholders’ Derivative Litigation, 68 F.3d 554 (2d Cir. 1995), a district court may not appoint a substitute arbitrator under such circumstances. Moss, 114 F.Supp.3d at 66. The court vacated its prior order and lifted its stay of the proceedings, holding that Moss “cannot be compelled to arbitrate her claims against Bay Cities Bank and First Premier Bank.” Id. at 68. This appeal followed.

DISCUSSION

We have jurisdiction to review an order “refusing a stay of any action under section 3” of the Federal Arbitration Act. 9 U.S.C. § 16(a)(1)(A). Here, the order appealed from lifted a prior stay under Section 3 and vacated a prior order compelling arbitration. Because the order appealed from “was effectively one ‘refusing a stay,’ ” we have jurisdiction to review it. Pre-Paid Legal Servs., Inc. v. Cahill, 786 F.3d 1287, 1290 (10th Cir.), cert. denied, — U.S. -, 136 S.Ct. 373, 193 L.Ed.2d 292 (2015); see also Dobbins v. Hawk’s Enters., 198 F.3d 715, 716 (8th Cir. 1999) (holding that court had jurisdiction to review order lifting stay of arbitration because it was an “order refusing to compel arbitration”); Corpman v. Prudential-Bache Sec., Inc., 907 F.2d 29, 30 (3d Cir. 1990) (same). We review the district court’s order de novo. See Mediterranean Shipping Co. S.A. Geneva v. POL-Atl., 229 F.3d 397, 402 (2d Cir. 2000).

Section 2 of the Federal Arbitration Act (FAA) provides that “[a] written provision in ... a contract ... to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable.” 9 U.S.C. § 2.

This text reflects the overarching principle that arbitration is a matter of contract. And consistent with that text, courts must rigorously enforce arbitration agreements according to their terms, including terms that specify with whom the parties choose to arbitrate their disputes and the rules under which that arbitration will be conducted.

Am. Exp. Co. v. Italian Colors Rest., 570 U.S. -, 133 S.Ct. 2304, 2309, 186 L.Ed.2d 417 (2013) (alterations, emphasis, citations, and internal quotation marks omitted). As with any contract, “the parties’ intention's control.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (internal quotation marks omitted). To discern the parties’ intentions, we look to the language of the agreement. PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1199 (2d Cir. 1996).

The arbitration agreement in this case provides that any disputes shall be resolved “by binding individual (and not joint) arbitration by and under the Code of Procedure of the National Arbitration Forum (“NAF”) in effect at the time the claim is filed.” App’x at 168. The agree.ment does not address how the parties should proceed in the event that NAF is unable to accept the dispute. The question is whether a court may compel arbitration when the designated arbitrator is unavailable.

We addressed that question in In re Salomon Inc. Shareholders’ Derivative Litigation, 68 F.3d 554 (2d Cir. 1995). There, a group of shareholders brought a derivative suit against former executives of Salomon Brothers. Id. at 555. The executives had signed arbitration agreements with Salomon Brothers providing that “any controversy ... arising out of [the employee’s] employment ... shall be settled by arbitration at the instance of any such party in accordance with the Constitution and rules then obtaining of the [New York Stock Exchange].” Id. at 558. The executives moved to compel arbitration, and the district court granted the motion, referring the matter to the New York Stock Exchange (“NYSE”). Id. at 555. NYSE declined to arbitrate the dispute, invoking its discretion under its constitution to decline to arbitrate cases referred to it. Id. at 555-56. The executives then returned to the district court and requested that the court appoint a substitute arbitrator pursuant to Section 5. Id. at 557. The court denied the motion. Id.

We affirmed. We held that where “the parties ha[ve] contractually agreed that only [one arbitrator] could arbitrate any disputes between them,” a district court must “decline[ ] to appoint substitute arbitrators and compel arbitration in another forum.” Id. at 559. This is because

[although the federal policy favoring arbitration obliges us to resolve any doubts in favor of arbitration, we cannot compel a party to arbitrate a dispute before someone other than the [designated arbitrator] when that party had agreed to arbitrate disputes only before the [arbitrator] and the [arbitrator], in turn, exercising its discretion ..., has refused ... to arbitrate the dispute in question.

Id. at 557-58. Once the designated arbitrator refuses to accept arbitration, there is “no further promise to arbitrate in another forum.” Id. at 557.

Thus, under Salomon, the question in this case is whether the language of the parties’ agreement contemplates arbitration before only NAF, or whether it contemplates the appointment of a substitute arbitrator should NAF become unavailable. In Salomon, we concluded that the parties’ agreement to arbitrate “in accordance with the Constitution and rules then obtaining of the NYSE” evinced their intent to “designate] ... an exclusive arbi-tral forum.” Id. at 558, 561 (alteration omitted).

The same is true here. The arbitration agreement in this case contains numerous indicators that the parties contemplated one thing: arbitration before NAF. The agreement provides that disputes “shall be resolved by binding individual (and not joint) arbitration by ... the National Arbitration Forum.” App’x at 168. It provides that the arbitration shall be conducted “under the Code of Procedure of the National Arbitration Forum.” App’x at 168. It requires that claims “shall be filed at any NAF office.” App’x at 168. And it provides that, if the claimant is unable to pay the costs of the arbitration, fees may be waived “by ... NAF.” App’x at 168. Further, the agreement makes no provision for the appointment of a substitute arbitrator should NAF become unavailable. In view of this mandatory language, the pervasive references to NAF in the agreement, and the absence’ of any indication that the parties would assent to arbitration before a substitute forum if NAF became unavailable, we conclude that, as in Salo-mon, the parties agreed to arbitrate only before NAF.

Appellants contend that the district court was required to appoint a substitute arbitrator pursuant to Section 5 of the FAA. Section 5 provides,

If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon, the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein....

9 U.S.C. §§ 5. Appellants contend that NAF’s inability to accept this case constitutes a “lapse” within the meaning of Seetion 5 such that the district court was required to appoint a substitute arbitrator.

In Salomon, we held that the “lapse” referred to in Section 5 “means a lapse in time in the naming of the arbitrator or in the filling of a vacancy on a panel of arbitrators or some other mechanical breakdown in the arbitrator selection process.” Id. at 560 (citations and internal quotation marks omitted). A district court may not, however, “use [Section] 5 to circumvent the parties’ designation of an exclusive' arbitral forum.” Id. at 561. We concluded that because the district court “promptly referred the matter to the NYSE for arbitration,” there “was no lapse or breakdown in selecting the arbitrator.” Id.

Under Salomon, there was no “lapse in the naming of an arbitrator” in this case. Here, as in Salomon, the parties designated an exclusive arbitral forum, the district court compelled the parties to arbitrate before that forum, and the forum declined to accept the case. In Salomon, we held that, under such circumstances, a court cannot use Section 5 to circumvent the clear' text of the parties’ agreement and appoint a substitute arbitrator.

Appellants try to distinguish Salo-mon on the ground that, in that case, NYSE “exercise[d] its discretion” not to accept the arbitration, whereas, here, NAF is unavailable because it cannot accept, consumer arbitrations pursuant to a consent decree. Appellants’ Br. at 18. We do not find this to be a meaningful distinction. Under Salomon, the dispositive factor is not why the designated arbitral forum is unavailable, but rather whether the designated forum was “exclusive.” Where the forum is exclusive, the district court may not “use [Section] 5 to circumvent the parties’ designation of an exclusive arbitral forum.” Salomon, 68 F.3d at 561.

Appellants also rely on two pre-Salomon cases in support of their position that Section 5 required the district court to appoint a substitute arbitrator in this case. See Astra Footwear Indus. v. Harwyn Int’l, Inc., 442 F. Supp. 907 (S.D.N.Y. 1978); Erving v. Virginia Squires Basketball Club, 468 F.2d 1064 (2d Cir. 1972). But Salomon considered and distinguished both of these cases. 68 F.3d at 560-61. Moreover, .Astra was a district-court decision. It was affirmed in a one-word, unpublished opinion. Astra Footwear Indus. v. Harwyn Int’l Inc., 578 F.2d 1366 (2d Cir. 1978). Thus, to the extent the district court’s reasoning in Astra conflicts with Salomon, we are bound to follow Salomon. And in Erving, the arbitration agreement provided that disputes would be arbitrated before a designated arbitrator or that person’s designee, undercutting the notion that the parties intended to arbitrate exclusively before the designated arbitrator. 468 F.2d at 1066 n.1. Further, the court in Erving did not analyze the language of Section 5 or address whether a “lapse” within the meaning of Section 5 had occurred in that case. Thus, like the district court, we find Salomon to be more instructive on the applicability of Section 5 than either Astra or Erving.

Finally, we acknowledge that there is a difference of opinion among the circuits on this issue. Compare Flagg v. First Premier Bank, 644 Fed.Appx. 893, 897 (11th Cir.2016) (unpublished opinion) (holding that “[b]ecause the choice of the NAF as the arbitral forum was an integral part of the agreement to arbitrate, we conclude that the district court properly denied First Premier’s motion to compel arbitration and appoint a substitute for NAF”), and Ranzy v. Tijerina, 393 Fed.Appx. 174, 176 (5th Cir. 2010) (unpublished opinion) (following Salomon to conclude that district court properly denied motion to compel arbitration given NAF’s unavailability), with Green v. U.S. Cash Advance Ill., LLC, 724 F.3d 787, 793 (7th Cir. 2013) (holding that Section 5 required court to appoint substitute arbitrator), and Khan v. Dell Inc., 669 F.3d 350, 356 (3d Cir. 2012) (finding Salomon “unpersuasive” and holding that NAF’s unavailability constituted a lapse within the meaning of Section 5). Like the district court, however, we are bound by Salomon. Thus, while some circuits have chosen to follow Salomon and others have not, we are not free to make that choice. The only question that we can decide is whether, applying Salomon, the district court correctly declined to compel Moss to arbitrate her claims before a forum to which she did not agree. We hold that it did.

CONCLUSION

For the foregoing reasons, we AFFIRM the order of the district court and REMAND for further proceedings.


author: CALABRESI, Circuit Judge:

text:
    Andrea VASQUEZ, Plaintiff-Appellant, v. EMPRESS AMBULANCE SERVICE, INC., Defendant-Appellee, Tyrell Gray, individually, Defendant.
    Docket No. 15-3239-cv
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: April 27, 2016
    Decided: August 29, 2016

      CASEY WOLNOWSKI, Phillips & Associates, New York, NY, for Plaintiff-Appellant
    DEBRA LYNNE WABNIK, Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, NY, for Defendant-Appellee
    Before: WALKER, CALABRESI, and HALL, Circuit Judges.
   CALABRESI, Circuit Judge:

In the space of twenty-four hours, Andrea Vasquez faced unwelcome sexual advances in the workplace, complained about that conduct to her employer, and lost her job. After receiving unsolicited sexual photographs from a co-worker one night shift, Vasquez promptly informed her supervisor and filed a formal complaint of sexual harassment, which her employer promised to investigate that same morning. Within a few hours, however, Vasquez’s co-worker had discovered her complaint and had provided the employer with false documents purporting to show Vasquez’s consent to and solicitation of a sexual relationship. In reliance on those documents, and notwithstanding Vasquez’s offers to produce evidence in refutation, Vasquez’s employer immediately fired her on the ground that she had engaged in sexual harassment. Vasquez consequently brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), alleging that she was wrongfully terminated in retaliation for complaining of sexual harassment. The district court dismissed Vasquez’s claims, holding that Vasquez’s employer could not have engaged in retaliation because it could not be held responsible for the retaliatory animus of Vasquez’s co-worker, a low-level employee with no decisionmaking authority. We hold, however, that an employee’s retaliatory intent may be imputed to an employer where, as alleged here, the employer’s own negligence gives effect to the employee’s retaliatory animus and causes the victim to suffer an adverse employment decision. As a result, we vacate the court’s decision and remand for further proceedings.

BACKGROUND

In July 2018, Andrea Vasquez was hired by Empress Ambulance Service, Inc. (“Empress”) to work as an emergency medical technician on an ambulance crew. In October of that year, Vasquez met Ty-rell Gray, who worked for Empress as a dispatcher and who almost immediately began making romantic overtures to Vasquez. Over the course of their acquaintance, Gray “constantly asked [Vasquez] out on dates,” “attempted to flirt with her,” and “repeatedly ... put his arm around her or touched her shoulders,” causing Vasquez “to be extremely uncomfortable” as she tried to reject his advances. App’x 9.

This conduct came to a head in January 2014. On January 8, while Vasquez and Gray both worked in Empress’s office, Gray approached Vasquez, placed his arm around her, and asked “When are you going to let me take you out?” App’x 9. When Vasquez replied that she had a boyfriend and was not interested in a romantic relationship, Gray insisted that “I bet I can make you leave your man” and promised to “send ... something between you and me.” App’x 9. Around midnight that night, while out on shift, Vasquez received a picture message from Gray: a photograph of his erect penis, captioned “Wat u think.” App’x 9-10. Vasquez did not respond to this message or to a follow-up text message from Gray as she continued her work. When Vasquez returned to the office at the conclusion of her shift, however, she was “extremely embarrassed, distraught, and crying.” App’x 10. And she promptly informed an Empress field supervisor about Gray’s conduct. Promising that “[wje’re going to deal with this,” the supervisor walked Vasquez to a computer in Empress’s office and asked that she compose and send a formal complaint right away, which Vasquez began to do. App’x 10.

As Vasquez was writing her complaint, however, Gray entered the room “to see a visually distressed [Vasquez] crying and typing at the computer.” App’x 10. Gray, “noticeably nervous,” asked Vasquez “if she was ok” and, after Vasquez declined to engage his attempts at conversation, stated, “You’re reporting me, right?” App’x 10. Gray then went out of the room and ran into another emergency medical technician, Almairis Zapata, with whom he began discussing Vasquez’s likely complaint. He asked Zapata, as “a favor,” because he was “afraid he was going to lose his job,” to “lie for [him]” and tell their supervisors that Vasquez and Gray had been in a romantic relationship.” App’x 11. Zapata refused, and Gray left the building.

After Gray’s departure, Vasquez finished writing her complaint, in which she explained that she felt “violated” and “disrespected” as a result of Gray’s behavior. She then waited in Empress’s office until Sheri Baia, one of her supervisors, and Elizabeth Shepard, a member of the human resources department, arrived to discuss what had happened. The supervisors thanked Vasquez for “telling [her] story,” assured her that “[w]e don’t tolerate this sort of behavior here,” and promised to “sort the situation out.” App’x 12. To aid in their investigation, Vasquez offered to show the supervisors Gray’s messages on her cell phone, but they rejected her offer. They then asked Vasquez whether she preferred to go home or to wait in the office while they investigated the incident that morning, and Vasquez elected to wait.

Gray, meanwhile, had not finished seeking to undermine the accusations he anticipated from Vasquez. Rather, in the intervening hours, Gray “manipulated a text message conversation on his iPhone to. make it appear as though a person with whom he had legitimately been engaging in consensually sexual text banter was [Vasquez].” App’x 12. He then “took screen shots of portions of the conversation, printed them off,” and “presented it to the management” of Empress as evidence that he and Vasquez had been in a consensual sexual relationship. App’x 12.

By the time Vasquez met with a committee of her union representative, Empress’s owner, and Shepard to discuss the incident later that morning, the committee had already considered Gray’s documents and had concluded that Vasquez was “having an inappropriate sexual relationship” with Gray. App’x 13. Shepard informed Vasquez that Empress “kn[e]w the truth,” as they had spoken with Gray and had seen his “proof’ of her improper conduct by means of “pictures and text messages.” App’x 13. In particular, Shepard reported that Gray had shown them “a racy self-taken photo” that Vasquez had allegedly sent in response to Gray’s explicit picture message, which they considered “proof that [Vasquez] had been sexually harassing [Gray].” App’x 13. Vasquez “adamantly denied” Shepard’s allegations and asserted that Gray was lying, but Shepard insisted that “the committee had all seen the photograph” and “kn[ew] it was [her in the photo].” App’x 13. She made this assertion even though, in fact, the photo depicted only “a small fraction of a face” that could “by no means [be] concluded to be that of [Vasquez].” App’x 13. When Vasquez asked to see the photograph, moreover, Shepard refused. Likewise, when Vasquez again offered again to show the committee her own cell phone, in an attempt to prove that no such messaging had occurred, the committee declined. They then fired Vasquez for engaging in sexual harassment.

Vasquez subsequently brought suit against Empress under Title VII and NYSHRL, claiming that Empress had wrongfully terminated her in retaliation for complaining of sexual harassment. Empress moved to dismiss Vasquez’s complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and the district court (Buchwald, J.) granted the motion, holding that Gray’s retaliatory intent could not be attributed to Empress and that, therefore, Empress could not have engaged in retaliation against Vasquez. Vasquez now appeals.

DISCUSSION

We review de novo a district court’s grant of a motion to dismiss under Rule 12(b)(6), accepting as true all factual allegations contained in the complaint and drawing all inferences in the plaintiffs favor. Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). In addition, “for a retaliation claim to survive ... a motion to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated — or took an adverse employment action — against [her], (2) because [s]he has opposed any unlawful employment practice.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (internal quotation marks omitted). Under the latter element, a plaintiff must show a “retaliatory purpose” by “plausibly pleading] a connection between the [adverse] act and [the plaintiffs] engagement in protected activity.” Id.

A. “Cat’s Paw” Liability

Vasquez seeks to recover 'against Empress under what has been termed “cat’s paw” liability. The phrase derives from an Aesop fable, later put into verse by Jean de La Fontaine, in which a wily monkey flatters a naive cat into pulling roasting chestnuts out of a roaring fire for their mutual satisfaction; the monkey, however, “devour[s] ... them fast,” leaving the cat “with a burnt paw and no chestnuts” for its trouble. “[IJnjected into United States employment discrimination law by [Judge Richard] Posner in 1990,” Staub v. Proctor Hosp., 562 U.S. 411, 415 n.1, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011), the “cat’s paw” metaphor now “refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action,” Cook v. IPC Intern. Corp., 673 F.3d 625, 628 (7th Cir. 2012) (Posner, J.). Because the supervisor, acting as agent of the employer, has permitted himself to be used “as the conduit of [the subordinate’s] prejudice,” Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990), that prejudice may then be imputed to the employer and used to hold the employer liable for employment discrimination. In other words, by merely effectuating or “rubber-stamp[ing]” a discriminatory employee’s “unlawful design,” Nagle v. Marron, 663 F.3d 100, 117 (2d Cir. 2011), the employer plays the credulous cat to the malevolent monkey and, in so doing, allows itself to get burned — i.e., successfully sued.

“To date, our Circuit has neither accepted nor rejected the cat’s paw approach.” Nagle, 663 F.3d at 118; see also Wright v. City of Syracuse, 611 Fed.Appx. 8, 11 n.2 (2d Cir. 2015). The Supreme Court, however, has approved its application under the Uniformed Services Employment and Reemployment Rights Act, a statute “very similar to Title VII,” Staub, 562 U.S. at 417, 131 S.Ct. 1186, and our sister circuits have overwhelmingly adopted the theory in Title VII retaliation cases. See, e.g., Zamora v. City of Houston, 798 F.3d 326, 332-33 (5th Cir. 2015); EEOC v. New Breed Logistics, 783 F.3d 1057, 1069-70 (6th Cir. 2015); Bennett v. Riceland Foods, Inc., 721 F.3d 546, 551-52 (8th Cir. 2013); Hicks v. Forest Preserve Dist. of Cook Cty., Ill., 677 F.3d 781, 789-90 (7th Cir. 2012); McKenna v. City of Philadelphia, 649 F.3d 171, 180 (3d Cir. 2011). Further, permitting “cat’s paw” recovery in retaliation cases accords with longstanding precedent in our Court, in the employment-discrimination context, that “a Title VII plaintiff is entitled to succeed, ‘even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the [decision-making] process.’ ” Holcomb v. Iona Coll., 521 F.3d 130, 143 (2d Cir. 2008) (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 (2d Cir. 1999)). Such a role is surely played by an employee who “manipulates” an employer into acting as mere “conduit” for his retaliatory intent. Accordingly, we now hold that the “cat’s paw” theory may be used to support recovery for claims of retaliation in violation of Title VII.

B. Co-Workers and Cat’s Paw(s)

The mere availability of “cat’s paw” liability in Title VII retaliation cases, however, does not resolve whether Empress may be held to the fire for its reliance on Gray’s retaliatory information. While the Supreme Court has approved holding an employer liable for the retaliatory intent of one of its “supervisors” under a “cat’s paw” theory, it specifically “express[ed] no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.” Staub, 562 U.S. at 422 n.4, 131 S.Ct. 1186. We must therefore determine in the first instance under what circumstances the “cat’s paw” approach will render an employer responsible for the animus of a low-level employee who works alongside the victim.

To do so, “[w]e turn to general principles of agency law, for the term ‘employer’ is defined under Title VII to include ‘agents’ ” and “Congress has directed federal courts to interpret Title VII based on agency principles.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see also Staub, 562 U.S. at 418, 131 S.Ct. 1186 (deriving cat’s paw liability from “general principles of ... agency law”). As set out by the Supreme Court in Ellerth, speaking in a hostile work environment case, there are four circumstances in which “agency principles impose liability on employers even where employees commit torts outside the scope of employment,” and would not ordinarily be deemed “agents” of the employer:

(a) the master intended the conduct or the consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal where there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

Ellerth, 524 U.S. at 758, 118 S.Ct. 2257 (quoting Restatement (Second) of Agency § 219(2) (1957)).

Significantly, in addressing employer culpability for employee misconduct, the Ellerth Court expressly noted that Section 219(2)(b) holds employers liable “when the [employee’s] tort is attributable to the employer’s own negligence. Thus, although a[n employee’s] sexual harassment is outside the scope of employment ..., an employer can be liable, nonetheless, where its own negligence is a cause of the harassment[, ... i.e.,] if it knew or should have known about the conduct and failed to stop it.” Id. at 758-59, 118 S.Ct. 2257.

We see no reason why Ellerth, though written in the context of hostile work environment, should not also be read to hold an employer liable under Title VII when, through its own negligence, the employer gives effect to the retaliatory intent of one of its — even low-level — employees. Not surprisingly, another circuit court has already determined, in reliance on Ellerth, that a discriminatory termination claim can proceed against an employer who negligently permitted the plaintiffs co-worker, a low-level employee harboring discriminatory intent, to induce the plaintiffs termination. In Velazquez-Perez v. Developers Diversified Realty Corp., the First Circuit explained that the “conclusion that [a biased employee] was not a supervisor d[id] not necessarily absolve [the employer] of potential liability for [the plaintiffs] discharge,” because there was “no basis” to believe that Ellerth’s acceptance of “employer liability premised on a finding of negligence” should be limited either to “cases of ‘hostile workplace’ discrimination” or to supervisory employees. 753 F.3d 265, 273 (1st Cir. 2014). It consequently held that “an employer can be held liable under Title VII if: the plaintiffs coworker makes statements maligning the plaintiff, for discriminatory reasons and with the intent to cause the plaintiffs firing; the co-worker’s discriminatory acts proximately cause the plaintiff to be fired; and the employer acts negligently by allowing the co-worker’s acts to achieve their desired effect though it knows (or reasonably should know) of the discriminatory motivation.” Id. at 274.

We agree with the First Circuit, and therefore conclude that Vasquez can recover against Empress if Empress was itself negligent in allowing Gray’s false allegations, and the retaliatory intent behind them, to achieve their desired end. Assuming that Empress knew or should have known of Gray’s retaliatory animus, the fact that “Gray was nothing more than ... a low-level employee with no supervisory or management authority,” Appellee’s Br. 18, cannot shield Empress from answering for Gray’s conduct because Empress’s own negligence provides an independent basis, under Ellerth and agency law, to treat Gray as Empress’s agent and hold Empress accountable for his unlawful intent. Once . deemed Empress’s agent, Gray stands in the same shoes as Staub’s “supervisor,” and is equally able to play the monkey to Empress’s cat. See Staub, 562 U.S. at 421, 131 S.Ct. 1186 (“The employer is at fault [in a cat’s paw case] because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.”) (emphasis added).

Such a negligence-based approach to “cat’s paw” liability, moreover, fully comports with established Title VII caselaw in our Circuit requiring that a biased non-decisionmaker play a “meaningful role” in an adverse employment decision for the unbiased decisionmaker to be culpable. See Bickerstaff, 196 F.3d at 450 (“We recognize that the impermissible bias of a single individual at any stage ... may taint the ultimate employment decision in violation of Title VII. This is true even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the [deci-sionmaking] process.”). Empress’s alleged negligence — in crediting Gray’s accusations to the exclusion of all other evidence, and specifically declining to examine contrary evidence tendered by Vasquez, when it knew or, with reasonable investigation, should have known of Gray’s retaliatory animus — caused Gray’s accusations to form the sole basis for Empress’s decision to terminate Vasquez. Thus, as a result of Empress’s negligence, Gray achieved a “meaningful,” and indeed decisive, role in Vasquez’s termination. Put differently, while Gray might, on other facts, have played no greater part than that of a mere “informant” or “witness at a bench trial,” Vasquez v. Empress Ambulance Serv., Inc., 14 Civ. 8387, 2015 WL 5037055, at *6 (S.D.N.Y. Aug. 26, 2015) (quoting Staub, 562 U.S. at 421, 131 S.Ct. 1186), who simply offered information for the decision-maker’s examination, on the facts before us, viewed in the light most favorable to Vasquez, Gray became the entire case against Vasquez when Empress negligently chose to credit his, and only his, account.

We emphasize that such an approach should not be construed as holding an employer “liable simply because it acts on information provided by a biased coworker.” Id. As we have long held, when considering the legitimacy of an employer’s reason for an employment action, we look to “what ‘motivated’ the employer” rather than to “the truth of the allegations against [the] plaintiff’ on which it relies. McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006); see also Jones, 796 F.3d at 330 (“[S]howing that an employer incorrectly found an employee guilty.of misconduct is insufficient to prove retaliation.... ”). Thus, an employer who, non-negligently and in good faith, relies on a false and malign report of an employee who acted out of unlawful animus cannot, under this “cat’s paw” theory, be held accountable for or said to have been “motivated” by the employee’s animus. And, of course, an employer who negligently relies on a low-level employee’s false accusations in making an employment decision will not be liable under Title VII unless those false accusations themselves were the product of discriminatory or retaliatory intent (although the employer may yet be liable for simple negligence under state law).

Only when an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, can the employee’s motivation be imputed to the employer and used to support a claim under Title VII. Put simply, an employer can still “just get it wrong” without incurring liability under Title VII, Supp. App’x 114, but it cannot “get it wrong” without recourse if in doing so it negligently allows itself to be used as conduit for even a low-level employee’s discriminatory or retaliatory prejudice.

Having determined that Vasquez can recover against Empress if Empress negligently gave effect to Gray’s retaliatory animus, we need now only decide whether Vasquez has sufficiently pled that Empress acted negligently in its treatment of Gray’s and Vasquez’s accusations. Although Vasquez does not use the term “negligence” in her complaint, we conclude that she has pled facts from which a reasonable person could infer that Empress knew or should have known that Gray’s accusations were the product of retaliatory intent and thus should not have been trusted. First, the fact that Gray had just learned that he had been accused by Vasquez of sexual harassment provided Gray with an obvious reason to lie and paint Vasquez as the perpetrator rather than the victim. With Gray more closely resembling a vengeful suspect than an independent informant, Empress had cause to treat with some skepticism his “he-said, she-said” cross-accusations. In’addition, as Vasquez notes, “the timing ... is also suspicious,” Appellant’s Br. 20: it seems unlikely that Vasquez should go from eagerly trading explicit messages to reporting such conduct as unwelcome harassment within the space of only six hours. It likewise seems strange that the very morning Gray is accused by Vasquez of harassment he should, when questioned by Empress, just happen to have on hand printed copies of amorous text messages purportedly received from Vasquez to substantiate his claim that she initiated the inappropriate exchange. Moreover, those messages themselves, viewed in the light most favorable to Vasquez, provide reason to distrust Gray’s account: according to Vasquez’s complaint, the racy picture message “was by no means unequivocally of [Vasquez],” as it showed only “a small fraction of a face which can by no means [be] concluded to be that of [Vasquez].” App’x 13. Empress, however, chose to ignore these warning signs and instead blindly credited Gray’s assertions, obstinately refusing to inspect Vasquez’s phone or to receive any other evidence proffered by Vasquez in refutation. Accordingly, accepting Vasquez’s allegations as true, we conclude that a reasonable jury could find that Empress acted negligently in terminating Vasquez solely on the basis of Gray’s accusations.

In sum, we hold that an employer may be held liable for an employee’s animus under a “cat’s paw” theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action. Because Vasquez has plausibly alleged that Empress’s negligence permitted Gray’s retaliatory intent to achieve its desired effect — her termination — her claims for retaliation against Empress may proceed.

CONCLUSION

For the foregoing reasons, we VACATE the judgment of the District Court and REMAND the case for further proceedings consistent with this opinion.

      . Because this appeal involves review at the motion to dismiss stage, we base this factual background on the allegations contained in Vasquez's complaint, which we assume to be true. See Littlejohn v. City of New York, 795 F.3d 297, 303 n.1 (2d Cir. 2015).

      . Vasquez also filed suit against Gray individually, but later consented to dismissal without prejudice of the claims against him, in response to an issue about service. App’x 41.

      . Because "[t]he standards for evaluating ... retaliation claims are identical under Title VII and the NYSHRL,” our analysis does not distinguish between Vasquez’s federal and state claims. Kelly v. Howard I. Shapiro & Assoc. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013).

      . We note that the parties do not dispute on appeal whether Vasquez has adequately pled Gray's retaliatory intent. In any event, we conclude that Vasquez’s allegations are more than sufficient to meet her minimal burden plausibly to plead Gray’s retaliatory intent. To do so, she need only plausibly plead that: (1) Gray desired his actions to cause, or knew that his actions were substantially certain to result in, adverse employment action for Vasquez, see Staub, 562 U.S. at 422 n.3, 131 S.Ct. 1186; and (2) he took those actions "because [s]he ha[d] made a charge” of sexual harassment, 42 U.S.C. § 2000e-3(a) — i.e., he would not have taken those actions if Vasquez had not filed a complaint with human resources, see Univ. of Texas Sw. Med. Ctr. v. Nassar,-U.S.-, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013) (holding that "but-for” causation is the proper standard for claims of retaliation under Title VII).

      . We note that a new Restatement of Agency has been published since the Supreme Court decided Ellerth, which discusses employer liability for employee torts committed outside the scope of employment in a somewhat different way. See Restatement (Third) of Agency § 2.04. Because both parties rely on the language of the Second Restatement as embodied in Ellerth, however, we likewise use that Restatement's formulation of agency principles to guide our analysis. In any event, the Third Restatement continues to hold employers responsible for harm caused by employees as a result of the employer's negligence. See Restatement (Third) of Agency § 7.05; id. cmt. b.

      . We decline Empress's invitation to find that Vasquez failed to raise this argument below and to deem the issue forfeited. At the district court, Vasquez argued that Gray's retaliatory intent should be imputed to Empress under a "cat’s paw” theory and that the patent insufficiency of Empress's investigation supported imposition of employer liability. See also Supp. App’x 114 (stating, at oral argument before the district court, that "the adequacy of the investigation is intertwined with the cat's paw theory of liability,” as determined by "a negligenfce] standard”). Although Vasquez failed to articulate precisely that the insufficiency of the investigation constituted negligence and that such negligence permitted imputation of Gray’s intent, we believe her arguments sufficed to raise the issue we address here. Regardless, “the rule against considering arguments raised for the first time on appeal is prudential, not jurisdictional, and we are free to exercise our discretion to consider waived arguments ... where[, as here,] an argument presents a question of law and does not require additional fact finding.” United States v. Brunner, 726 F.3d 299, 304 (2d Cir. 2013) (internal quotation marks and citations omitted).

      . See also id. ("Suppose, for example, that a white employee repeatedly taunts a black coworker with vicious racial epithets and also lodges a series of false complaints about the victim to their supervisor in a racially motivated attempt to have the victim fired. Certainly the employer could be held liable for negligently permitting the taunting. So, too, the employer should be liable if it fires the victim based on complaints that it knew (or reasonably should have known) were the product of discriminatory animus. In either situation, the same elements are present: an act of discrimination is allowed to cause harm by an employer that knows or reasonably should know of the discrimination.”)

      . In support of its motion to dismiss, Empress attached a copy of the text-message exchange provided by Gray, but the district court does not appear to have considered the document in reaching its judgment, and we therefore do not rely on the document to support our conclusion here. We note, however, that were we to consider the text-message printout as a document incorporated by reference in Vasquez’s complaint, see DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010), we would find additional fodder to support the inference that Empress should not have believed Gray's account: for instance, the exchange indicates that Gray’s texting partner was "[a]sleep” at 12:03 AM on January 9th, a time when Vasquez was actually on shift working for Empress. See Supp. App’x 39.