510 F.Supp.3d 51
S.D.N.Y.2020Background
- McHenry, a Fox Nation on-air host, co-hosted Un-PC with George Murdoch (Sept 2018–Apr 2019). She alleges repeated unwanted sexually explicit texts, an instance of aggressive touching, on-air verbal attacks, and that Murdoch circulated doctored sexual images purporting to be of her.
- McHenry complained multiple times to Un-PC executive producer Jennifer Rauchet; Rauchet allegedly did not report two complaints to HR and later made hostile comments about McHenry. McHenry also met once with Fox HR rep Monika Mekeel, who requested all texts and asked what McHenry had done to “provoke” Murdoch.
- Fox News conducted investigations (DLA Piper and a later investigator) and concluded there was no harassment or retaliation; McHenry alleges the investigations were inadequate and that doctored messages were used against her.
- After complaining, McHenry alleges retaliation: fewer bookings, exclusion from events, and that Murdoch was promoted and continued to receive career-enhancing appearances.
- Procedurally, Murdoch and Fox Corp., Finley, Mekeel, and Rauchet moved to dismiss. The Court denied Murdoch’s motion in full; granted dismissal of Fox Corp., Finley, and Mekeel (with prejudice); granted in part and denied in part as to Rauchet.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NYCHRL sexual harassment/gender discrimination vs. Murdoch | Murdoch sent repeated unwanted sexually explicit texts, made sexual advances, and circulated doctored sexual images of McHenry | Murdoch: messages not gender-based harassment, were consensual/reciprocal or innocuous, and lack male comparator | Court: Sufficiently pleaded under NYCHRL; dismissal denied |
| Retaliation by Murdoch (and aiding/abetting retaliation) | McHenry complained and participated in investigations; thereafter Murdoch lashed out on-air, circulated doctored messages, and she suffered career consequences; causal nexus alleged | Murdoch: conduct not tied to complaint or gender; some acts predate knowledge of complaint | Court: NYCHRL retaliation plausibly pleaded (protected activity, notice, retaliatory acts reasonably likely to deter, causal link); dismissal denied |
| Single-employer / principal and aiding-and-abetting liability vs. Fox Corp., Finley, Mekeel | Fox Corp. exercised centralized control (hires/fires, HR, policies); Mekeel acted for both entities and mishandled complaint; Finley had oversight | Defendants: allegations are conclusory; no factual showings of centralized control or actual participation in harassment/retaliation; parent/sub claims insufficient at pleading stage | Court: Claims against Fox Corp., Finley, and Mekeel dismissed with prejudice for failure to plead single-employer or actual participation |
| Aiding-and-abetting retaliation vs. Rauchet; aiding-and-abetting harassment vs. Rauchet | Rauchet, as executive producer, was told of complaints, failed to report, told McHenry she was replaceable, stopped booking her on Watters’ World—thus participated in retaliatory exclusion | Rauchet: booking decisions handled by other producers; lacked authority; harassment had ceased before complaints | Court: Aiding-and-abetting retaliation claims against Rauchet plausibly pleaded (participation + shared intent); aiding-and-abetting harassment/discrimination claims dismissed |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (discussing legal conclusions vs. factual allegations)
- Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) (hostile work environment standard parallels Title VII)
- Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102 (2d Cir. 2013) (NYCHRL’s more permissive standard for harassment)
- Harris v. Forklift Sys., 510 U.S. 17 (hostile work environment factors)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden-shifting framework for retaliation/discrimination)
- Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995) (single-employer / integrated enterprise factors)
- Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) (individual liability for aiding-and-abetting when actually participating in discriminatory conduct)
- Feingold v. New York, 366 F.3d 138 (2d Cir. 2004) (aider-and-abettor liability independent of supervisory status)
- Brown v. Daikin Am. Inc., 756 F.3d 219 (2d Cir. 2014) (pleading single-employer requires factual allegations that labor relations were centrally controlled)