Jennifer Eckhart’s Retaliation Claims Survive Against Fox News, Ed Henry

In Eckhart v. Fox News Network, LLC and Ed Henry, 20-CV-5593, 2021 WL 4124616 (S.D.N.Y. Sept. 9, 2021), the court, in part, held that plaintiff’s retaliation claim survived dismissal.

In her complaint, plaintiff alleges various forms of retaliation: (1) terminating her employment; (2) issuing a press release about alleged harasser Ed Henry’s termination; (3) filing a motion for sanctions; and (4) filing of nude and partially nude pictures of plaintiff on the public docket.

As to plaintiff’s retaliatory termination claim, in consideration of defendant Fox News’ contention that plaintiff did not plausibly allege that she was fired for engaging in a “protected activity”, summarized the law on that point as follows:

Under all three statutes, a protected activity is any action taken to protest or oppose statutorily prohibited discrimination. Generalized complaints of unfair treatment do not qualify as a protected activity. Instead, in order to be protected activity, the complainant must put the employer on notice that the complainant believes that discrimination is occurring. No magic words must be used when making such a complaint, so long as the employer could reasonably have understood that the employee was complaining about discrimination. … Courts must assess an employee’s complaint in context, rather than in isolation. [Citations and internal quotation marks omitted; cleaned up.]

Applying the law to the facts, the court explained:

In February 2020—four months before her termination—Eckhart informed her manager, Brad Hirst, as well as the Senior Vice President of Human Resources at Fox News, Denise Collins, about the abuse and hostility that she had endured at Fox News. Concededly, however, she “did not explicitly mention sexual harassment or misconduct” when she made this complaint. Yet she asserts that Hirst and Collins nonetheless understood that she was complaining about unlawful sexual harassment at this time. She urges that her complaint to Collins and Hirst must be read in context. In the years immediately preceding this complaint, Fox News received complaints of sexual harassment and sexual misconduct by over twenty female employees. Given that context, Eckhart contends that it would be reasonable for an executive at the network to understand her reference to the “abuse and hostility” she endured as a reference to sexual abuse or gender-based harassment. She also notes that upon her termination in June 2020, Collins—who was present when she made her initial complaint in February 2020—asked her if “if she had been sexually harassed and/or assaulted while employed by Fox News.” She reasons that Collins asking her this question upon her exit from the company suggests that Collins understood Eckhart’s initial complaint to have been about sexual harassment and/or assault, which would render it protected activity.

Viewing the allegations in the light most favorable to Eckhart, the Court finds this inference to be plausible. Fox News counters by characterizing Collins’s question as a “standard question” that is a “best practice” followed by many employers, and urges the Court not to draw the inference Eckhart proposes. Fox Mem. 21. This may be true, but because it was not alleged in the Complaint, this assertion is not properly before the Court at this time. Discovery may reveal that this was indeed a standard question that Fox News asks of all its departing employees, and a factfinder may not accept the inference that Eckhart has put forth. But at the present juncture, confining its inquiry only to the four corners of the operative Complaint, the Court agrees with Eckhart that the allegations are sufficient.

Eckhart has thus plausibly alleged that Fox News understood that she was opposing unlawful gender discrimination when she complained about “the abuse and hostility that she had endured for years” in February 2020, and therefore that she engaged in protected activity. And because this protected activity occurred in close proximity to her termination (about four months before it), and because, according to Eckhart, prior to her termination she had received only positive feedback and several promotions, the Court concludes that she has plausibly alleged a causal connection between her complaints and her termination.

[Citations and internal quotation marks omitted; cleaned up.]

Based on this, the court held that plaintiff’s retaliatory termination claim survived dismissal.

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