By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - ESPN
SDNY COURTHOUSE, Dec 18 – In late 2019 Brittany McHenry filed a sexual harassment and retaliation lawsuit against Fox New, Fox Corporation, George Murdoch a/k/a Tyrus and the others. On September 25 U.S. District Court for the Southern District of New York Judge Paul A. Engelmayer held an oral argument on a partial motion to dismiss. Inner City Press live tweeted it, below.
Now on December 18 Judge Engelmayer has dismissed some but not all of the claims, including this focus on the new amendment: "In August 2019, the NYSHRL was amended to direct courts to construe the NYSHRL, like the NYCHRL, “liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws including those laws with provisions worded comparably to the provisions of [the NYSHRL] have been so construed.” N.Y. Exec. Law § 300. The amendment took effect on the signing date, August 12, 2019, although other parts of the omnibus bill containing it took effect on October 11, 2019. See S. 6577, 242d Leg. § 16 (N.Y. 2019). McHenry depicts the amendment as broadly applicable to her claims under the NYSHRL. But the amendment has only a limited impact on her case, for two reasons. First, the amendment does not have retroactive effect. The omnibus bill does not contain language indicating that the 2019 amendments were intended to apply retroactively, see Arg. Tr. at 77–78, and “[i]t is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it,” Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 584 (1998). Accordingly, courts to date have held that the 2019 NYSHRL amendments are not retroactive. See, e.g., Wellner v. Montefiore Med. Ctr., No. 17 Civ. 3479 (KPF), 2019 WL 4081898, at *5 n.4 (S.D.N.Y. Aug. 29, 2019) (holding that omnibus bill’s effective date is October 11, 2019). Second, McHenry’s Amended Complaint alleges only discrete actions after the effective date of the amendment. These are by Rauchet and Murdoch only. See Am. Compl. ¶ 99 (in November 2019, Rauchet told a Fox News guest to stay away from McHenry because she was “drama” for suing the network); id. ¶ 106 (in October 2019, McHenry discovered that Murdoch had, at an unspecified time, circulated doctored messages containing photos purporting to be of her). There is no occasion at this stage to consider the legal consequence, if any, of the fact that Rauchet’s and Murdoch’s conduct, as alleged, straddled the effective date of the amendment. That is because, for the reasons that follow, the Court finds McHenry’s claims against those two defendants sounding in retaliation to state a claim under the pre-amendment standard. These are the retaliation claims against Murdoch and the aiding-and-abetting-retaliation claims against Murdoch and Rauchet. The remaining claims presently at issue are all based exclusively on conduct predating the amendment, and none state a claim. These are the claims against Fox Corp., Finley, and Mekeel, and the harassment claims against Rauchet."
From the oral argument, Inner City Press' live tweets: Fox's lawyer points back to a time it was called "21st Century Fox." Judge Engelmayer: When I grew up, it was 20th Century Fox... Which I guess is better than 19th Century Fox. Fox Corp is moving to get out of the case, leaving Fox News in (while disputing facts)
Fox's lawyer: She doesn't allege details of how she was hired, does not bring in 21CF.. Judge Engelmayer: Got it. Let me ask you about Monica Mekeel, listed as SVP for both Fox News *and* Fox Corp. Fox's lawyer: That's not enough to plead single employer.
Judge Engelmayer: Was she wearing both hats? Fox's lawyer: It's not pled clearly enough. And Ms. Mekeel wasn't made aware of the alleged harassment early enough. Judge Engelmayer: If the behavior of Mister [George] Murdoch is not attributable to either Fox...
Fox's lawyer: She hasn't alleged anything specific about John Finley... And saying that Mekeel asked her what she'd done to trigger this from Mr. Murdoch is not enough under the applicable law. Inner City Press
Judge Engelmayer asks about the Amended Complaint's statement that "Ms. McHenry used to regularly appear on Fox News Channel's 'Watters' World,' but has not been booked since her complaint (despite communications from bookers that they wanted her to appear)."
Fox's lawyer: There are a lot of people who work on these shows. Judge Engelmayer: But Jen Rauchet is the executive producer... Let's walk about Ms. Mekeel. Doesn't she own this problem, such as it is? Didn't she have an affirmative duty? And Ms McHenry got iced
Fox's lawyer: the investigation was taken away from Mekeel, to an outside investigator, as Ms. McHenry's request. [Argument by Kristina Yost of Jones Day for Fox is over. Now Thomas Clare for George Murdoch / Tyrus - he says, Tyrus was NOT her employer
Tyrus' lawyer: They were co-hosts, co-workers. Judge Engelmayer, quoting from the complaint: But he said, Your picture looks so good, I could knock it up. And he grabbed her hand in Times Square. Tyrus' lawyer: That doesn't show it was unwanted.
As the argument proceeds, this from the Amended Complaint at Para 74: "On November 5, 2018, Mr. Murdoch texted Ms. McHenry, 'I'll show you what it means to be bad Brittany Mc Henry // D*ck pic coming in 5 sec!!!'"
Judge Engelmayer: Doesn't this cross the line? DP alert: Judge Engelmayer just said, without the asterisk, "Di*k pic," asks about "You'll need those legs to escape from me to Montana" - doesn't that imply no consent? Tyrus' lawyer: There's not a lot I can say. Judge Engelmayer: We'll see where the case goes.
Now Ms McHenry's lawyer is up. Judge Engelmayer asks him how it is possibly retaliatory to ask to see all the text messages. "What have you done to provoke Mr. Murdoch"- are you saying that is retaliation? McHenry's lawyer: It's victim-blaming. It's discriminatory
Judge Engelmayer: But how can you claim Ms. Mekeel aided and abetted harassment, and not just retaliation? McHenry's lawyer: She did nothing to stop it. Judge Engelmayer: What about Finley? It's just a cameo appearance. McHenry's lawyer: He was the VP...
Judge Engelmayer, to McHenry's lawyer: Why did you include Fox Corp and not just Fox News? A: You never know. Judge Engelmayer: That's not the pleading standard. And why do you argument that the new amendment applies retroactively? A: I don't have cases on that.
This McHenry v. Fox argument is over. Judge Engelmayer: I'm taking it under submission. I wish you all well, and I know I will be seeing you down the road. We are adjourned.
The case is McHenry v. Fox News Networks, LLC et al., 19-cv-11294 (Engelmayer)
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