“Liberal Sherpa” Cathy Areu’s Title VII Gender Discrimination Claim Against Fox News Dismissed; Title VII “Employee” Status Insufficiently Alleged

In Areu v. Fox News Network, LLC, 2021 WL 4124226 (SDNY Sept. 9, 2021), the court, inter alia, dismissed plaintiff’s gender discrimination claim against Fox News, asserted under Title VII of the Civil Rights Act of 1964, because she failed to plausibly allege that she was Fox News’ “employee” within the meaning of the statute.

The court summarized the “black letter” law as follows:

“The definition of the term ‘employee’ provided in Title VII is circular: The Act states only that an ‘employee’ is an ‘individual employed by an employer.’ ” O’Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997) (quoting 42 U.S.C. § 2000e(f)). In response, the Second Circuit has established a two-part test to determine employee status in instances where a clear, contractual, employer-employee relationship cannot be established. See id.

To clear the first step—a prerequisite to a finding of employment—the plaintiff must demonstrate “that she was hired by the putative employer. To prove that she was hired, she must establish that she received remuneration in some form for her work.” United States v. City of N.Y., 359 F.3d 83, 91–92 (2d Cir. 2004); see also O’Connor, 126 F.3d at 115–116 (“Where no financial benefit is obtained by the purported employee from the employer, no ‘plausible’ employment relationship of any sort can be said to exist.”).5 This remuneration need not be a salary, but it must convey a “substantial benefit[ ]” to the putative employee. City of N.Y., 359 F.3d at 92; see also York v. Ass’n of the Bar, 286 F.3d 122, 126 (2d Cir. 2002) (holding that financial benefits must meet a minimum level of “significance” to qualify as remuneration). Further, the benefits conveyed may not be “merely incidental” or “a necessary incident” of the work performed. York, 286 F.3d at 126. Nor may they be “vague benefits”, such as “networking opportunities,” “widespread publicity” or “name recognition.” See Hughes v. Twenty-First Century Fox, Inc., 304 F. Supp. 3d 429, 444 (S.D.N.Y. 2018).

Courts in this Circuit have found the following benefits sufficiently substantial to qualify as remuneration: “health insurance[,] vacation[,] sick pay[,] … a retirement pension, …life insurance, … death benefits, [and] disability insurance.” York, 286 F.3d at 126 (collecting cases). In contrast, the following benefits have been found to be insufficiently substantial: networking opportunities, id., “the opportunity to showcase [one’s] work for casting directors,” Glaser v. Upright Citizens Brigade, LLC, 377 F. Supp. 3d 387, 396 (S.D.N.Y. 2019), and reimbursement for travel expenses or hair and make-up services, Hughes, 304 F. Supp. 3d at 443.

Applying the law to the facts, the court explained:

In the Complaint, Areu pleads no facts about her remuneration, other than recounting that she once told Kurtz that Fox “spent $12k on [her] remote hits last week alone [and were] flying [her] up [to their studio] once a month for Fox Nation shows.” Compl. ¶ 114. In her opposition to the instant motion, Areu lists other benefits she claims to have received from Fox News, including “hair and makeup, transportation, and lodging” as well as “ ‘plugs’ for her magazine.” Fox Opp. at 7. She also alleges that Fox News hired and paid a company run by Areu “to provide hair and makeup services to Fox on air personalities.” Id. But besides a brief mention of travel expenses, Compl. ¶ 114, none of these allegations were included in the Complaint. Accordingly, the Court will not now consider them. See Goodman v. Port Auth. of N.Y. & N.J., 850 F. Supp. 2d 363, 380 (S.D.N.Y. 2012) (“[M]emoranda and supporting affidavits in opposition to a motion to dismiss cannot be used to cure a defective complaint.” (internal quotation marks omitted)); see also Houston v. Seward & Kissel, LLP, 07-CV-6305 (HB), 2008 WL 818745, at *9 (S.D.N.Y. Mar. 27, 2008) (rejecting plaintiff’s submission of “factual averments” for the first time in its opposition brief).6

Based on this, the court concluded that plaintiff “has failed to plausibly allege that she was ever an employee of Fox News and is thus unable to make out a Title VII discrimination claim.”

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