Eckhart et al v. Fox News Network, LLC et al

Filing 158

OPINION & ORDER re: (52 in 1:20-cv-05593-RA-GWG) MOTION for Sanctions . filed by Sean Hannity, Howard Kurtz, Tucker Carlson, Fox News Network, LLC, (6 in 1:20-cv-08678-RA-GWG) MOTION to Dismiss . filed by Ed Henry, Ed Henry, (3 in 1:20-cv-08678-RA-GWG) MOTION to Dismiss . filed by Howard Kurtz, Sean Hannity, Tucker Carlson, Fox News Network, LLC, (97 in 1:20-cv-05593-RA-GWG) LETTER MOTION for Leave to File Excess Pages addressed to Judge Ronnie Abrams from Robert J. Valli, Jr. dated October 22, 2020. filed by Cathy Areu, (13 in 1:20-cv-08678-RA-GWG) MOTION for Sanctions . filed by Howard Kurtz, Sean Hannity, Howard Kurtz, Tucker Carlson, Tucker Carlson, Fox News Network, LLC., For the reasons stated above, the motions to dismiss are granted and the motion for sanctions is denied. Plaintiff's motion for leave to file an amended complaint is granted. If she so chooses, Plaintiff must file an amended complaint no later than September 30, 2021. Failure to file an amended complaint by that date will result in dismissal of this action with prejudice. The Clerk of Court is respectfully directed to terminate the motions pending at docket entries 3, 6, and 13 in case number 20-CV-8678 and docket entries 52, 86, and 97 in case number 20-CV-5593. (Amended Pleadings due by 9/30/2021.) (Signed by Judge Ronnie Abrams on 9/9/2021) (rro)

Case 1:20-cv-05593-RA-GWG Document 158 Filed 09/09/21 Page 1 of 33

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CATHY AREU,

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED:

Plaintiff,
v.

20-CV-8678 (RA)

FOX NEWS NETWORK, LLC, ED HENRY,
SEAN HANNITY, TUCKER CARLSON,
and HOWARD KURTZ,

OPINION & ORDER

Defendants.

RONNIE ABRAMS, United States District Judge:
Plaintiff Cathy Areu, a former Fox News contributor, brings this action against the network and
four of its most prominent employees: Tucker Carlson, Sean Hannity, Ed Henry, and Howard Kurtz (the
“Individual Defendants”).

Areu accuses the network and the Individual Defendants (together,

“Defendants”) of discriminating against her on the basis of her gender and retaliating against her for
opposing that discrimination. According to Areu, the Individual Defendants made overtures and
comments to her indicating that they expected her to “pay to play”—that is, they expected her to engage
with them sexually or romantically, or at the very least “accept [their] misogynistic behavior,” in
exchange for professional success at the network. Defendants deny the factual allegations and move to
dismiss Areu’s claims. For the reasons set forth below, the motions to dismiss are granted, although
Areu will be given an opportunity to file an amended complaint.
First, Areu alleges that Defendants discriminated against her on the basis of her gender by
subjecting her to sexual harassment and a hostile work environment. But a plaintiff may only pursue
such a discrimination claim if she is an employee or “covered non-employee” of the defendant. To
qualify as a covered non-employee—a standard that differs slightly depending on whether the Court is

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applying state, local, or federal law—Areu must plausibly allege that she was paid by the network or
that she received something of substantial value from it in exchange for her work. Because she has not
made such a showing, nor alleged that she was a Fox News employee, the Court must dismiss her claims
of discrimination.
Second, Areu alleges that the network discriminated against her by subjecting her to a lengthy
hiring process for a paid position while hiring male applicants for such positions more quickly. Yet Areu
has provided the Court with almost no information about those applicants other than their gender.
Without any factual allegations about the qualifications of these male applicants, the Court cannot fairly
compare them to Areu. As a result, Areu has not sufficiently alleged that Fox News favored them over
her on the basis of gender.
Third, Areu claims the Individual Defendants retaliated against her for opposing their purportedly
“misogynistic” practices. She alleges that Carlson, Henry, and Kurtz made “clear and/or implied” sexual
advances toward her, and that Hannity attempted to “auction[ her] off” to the men on his set. Areu
maintains that when she rejected these advances, or otherwise failed to respond in the “‘right’ way” to
the allegedly sexist conduct, the men sought to “punish” her—either by refusing to provide her career
assistance or ceasing to invite her to appear on their shows. The facts pled in the Complaint do not,
however, support a legal claim for retaliation. This is true with respect to Carlson, Hannity, and Kurtz
because Areu does not adequately allege that their conduct constituted actionable discrimination and/or
that her responses to that conduct communicated a “protest or opposition” to discrimination, so as to
constitute protected activity under the anti-retaliation laws. As for Henry, Areu does plausibly allege
that she engaged in protected activity by rejecting his overt sexual advances. But she has not alleged
that Henry responded to her rejection in a way that can be characterized as actionable retaliation because
she has not claimed that he changed his behavior in response to that rejection in a way that adversely
affected her employment, or otherwise disadvantaged her.
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Lastly, Areu alleges that Fox News retaliated against her by way of its conduct during this
litigation—namely, by filing a sanctions motion and leaking emails to the press that contradict Areu’s
claims. In the Court’s view, these allegations demonstrate no more than the network’s reasonable
defense of itself, and do not themselves form the basis of a retaliation claim.
In sum, Areu has failed to state a claim for discrimination or retaliation under any of the
applicable laws. The Court thus grants Defendants’ motions to dismiss in full. At Areu’s request,
however, the Court will allow her an additional opportunity to submit an amended complaint that
addresses these deficiencies, should she have a good-faith basis to do so.
The parties have also filed cross-motions for sanctions. Fox News’s sanctions motion is
grounded in its allegation that Areu filed legally frivolous claims—based on factual allegations she
allegedly knows to be untrue—for the improper purposes of generating publicity, defaming Defendants,
and extorting a settlement. Areu denies these accusations and urges that Defendants engaged in
sanctionable misconduct by filing the motion in the first instance. In the Court’s view, neither party’s
zealous advocacy in this contentious case warrants sanctions. Both motions are denied.
A more fulsome analysis of Areu’s claims as well as a recitation of the factual allegations
underlying them follows.

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BACKGROUND 1
The Court draws the following facts from the Complaint, Dkt. 2. 2 For the purposes of this
motion, the Court accepts all of Plaintiff’s well-pled facts as true, as it must. See Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007).
I.

The Hiring Process at Fox News
Areu alleges that Fox News—like other news and media companies—does not employ a

“traditional approach” to hiring. Compl. ¶¶ 42-43. Instead, persons hoping to be employed by the
company as paid contributors “undergo a ‘field test’ of sorts wherein their previous on-air work serves
as their resume and their interview often takes the form of an engagement as a[n unpaid] contributor,
pundit or analyst . . . auditioning live on a network program.” Id. ¶ 43.
The anchors and hosts of these programs are allegedly “given extensive control and influence”
over which contributors they invite to appear. Id. ¶ 59. In particular, the most powerful anchors, like
Hannity and Carlson, “have unbridled control over their programming.” Id. ¶ 62. Because appearing as
a guest on Fox News programs serves as the “interview” portion of the application process to become a
paid contributor, being invited onto these programs is an important step in the hiring process. As Areu
alleges, “[w]ith a single stroke [the network anchors] can make or break one’s career at Fox.” Id.

This opinion uses the following citations: “Compl.” for the operative complaint, Dkt. 2; “Fox Mem.” for the memorandum
of law in support of the motion to dismiss brought by Fox News, Carlson, Hannity, and Kurtz, Dkt. 4; “Henry Mem.” for the
memorandum of law in support of Henry’s motion to dismiss, Dkt. 7; “Areu Fox Opp.” for Areu’s memorandum in opposition
to the motion to dismiss brought by Fox News, Carlson, Hannity, and Kurtz, Dkt. 35; “Areu Henry Opp.” for Areu’s
memorandum of law in opposition to Henry’s motion to dismiss, Dkt. 34; “Fox Reply” for the reply memorandum in support
of the motion to dismiss brought by Fox News, Carlson, Hannity, and Kurtz, Dkt. 37; “Henry Reply” for the reply
memorandum of law in support of Henry’s motion to dismiss, Dkt. 36; “Sanctions Mem.” for the memorandum of law in
support of the motion for sanctions brought by Fox News, Carlson, Hannity, and Kurtz, Dkt. 14; “Sanctions Opp.” for Areu’s
memorandum of law in opposition to the sanctions motion, Dkt. 31; and “Sanctions Reply” for the reply memorandum in
support of the sanctions motion, Dkt. 33. All citations to the docket relate to the docket in case number 20-CV-8678, unless
otherwise noted.
2
Although Areu has twice amended her complaint, the operative complaint is titled “Amended Complaint.” For simplicity,
the Court will refer to this operative complaint as “the Complaint” throughout this opinion.
1

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II.

Cathy Areu
Plaintiff Cathy Areu was an aspiring on-air personality at Fox News. Compl. ¶ 48. In 2017, she

began appearing on a variety of Fox News programs including “Tucker Carlson Tonight,” “Media Buzz
with Howard Kurtz,” “Hannity,” “The Ingraham Angle,” “Outnumbered,” “Fox and Friends,” “Fox and
Friends First,” “Waters’ World,” “The Story,” “Fox News @ Night,” “Cavuto Live,” “Your World,” and
“Coast to Coast.” Id. ¶ 49. She would sometimes appear as often as five times per week. Id. When she
was not appearing on shows, she was preparing for them by staying up to date on current events, which
enabled her to be able to discuss any topic with little notice. Id. ¶ 50.
Areu was never paid for her appearances on Fox News, but the network paid for some of her
accommodations, including her travel and lodging when she traveled to appear on the network. Id. ¶ 51.
In 2018, Areu found particular success with her “Liberal Sherpa” segments on Tucker Carlson’s show.
Id. ¶ 54. As a result, Areu “began having serious conversations with a myriad of employees at Fox
News[] regarding being brought on board as a paid contributor.” Id. ¶ 57. According to her agent, “Fox
News was in final discussions to bring her on board as an official paid contributor” in 2018. Id. ¶ 58.
The paid contributor position never materialized for Areu. Instead, over the course of several
years, her invitations to appear on Fox News dried up. She went from appearing “regularly” in 2018, to
“being blacklisted from the majority of Fox News’ most well-known shows in 2019”, to “being
completely removed from the air in 2020.” Id. ¶ 176. Areu attributes this change of course to several
encounters she had with Fox News’s male anchors, in which she alleges the anchors sexually harassed
her and/or made sexual or romantic advances towards her which she did not reciprocate. Id. A review
of these allegations follows, organized chronologically.

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III.

Sean Hannity
On March 8, 2018, Areu was scheduled to appear on “The Sean Hannity Show.” Compl. ¶ 94.

On that date, she brought a male friend to Fox News’s studio with her. Id. According to Areu, Hannity
seemed “annoyed” that she had brought this guest. Id. ¶ 95. Hannity asked Areu about her relationship
with her guest and asked the guest if he was taking Areu on a date that night. Id. ¶¶ 95, 98. When the
guest did not respond affirmatively, Hannity “loudly call[ed] out to other males in the room” asking if
they would take Areu on a date, describing her as a “beautiful woman.” Id. ¶¶ 98–99. He then gave
some money to Areu’s guest, encouraging him to take Areu on a date and to use the money to buy
drinks—particularly the “pineapple drink that is made specifically for Mr. Hannity at Del Frisco’s.” Id.
¶¶ 100–101.
Although she allegedly felt “rattled” by this exchange, Areu later “emailed the show to thank Mr.
Hannity for having her on, and for [paying for] the drinks [she had with her male friend]” because “[a]s
anyone in the TV industry will attest, thanking a show for an appearance is proper etiquette if you want
to get asked back.” Id. ¶¶ 101–102. Areu also texted a Fox News staffer, noting “don’t tell [Hannity]
[that she does not like the pineapple drink],” to which the staffer responded, “your secret is safe with
me.” Id. ¶ 103 (alterations in original).
IV.

Tucker Carlson
Areu claims that, unlike now, she was once a “regular” on “Tucker Carlson Tonight,” appearing

on the show twenty times in 2018 alone. Compl. ¶ 159.
One of these appearances occurred on or around November 30, 2018. Id. ¶ 140. On that occasion,
Carlson asked Areu to remain in the studio until the end of the show after her segment had finished
taping. Id. ¶ 144. After the show ended, when only Carlson, Areu, and one or two other staffers remained
in the studio, Carlson allegedly began changing his clothes in front of Areu and told her that “he would
be alone in New York City that night, and that he would be staying alone in his hotel room.” Id. ¶ 150.
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Areu alleges that this statement was a “test” to see if “she [would] be open to his suggestion of a sexual
encounter with him.” Id. ¶ 151. Instead of responding “the ‘right’ way,” id. ¶ 152, Areu asked Carlson
why he wanted to speak with her, then “listed her credentials,” and reminded him that she “ha[d] the
number one segment on his show,” which she believed “made her worthy of . . . consideration” for a job
with him, id. ¶¶ 153–154. After Carlson made a joke about Areu to his two male colleagues who
remained in the room—asking “you guys didn’t find her on the street after all?”—Areu left the studio.
Id. ¶¶ 154–156.
The next morning, Areu noticed that her taped segment from Carlson’s show had been removed
from the Fox News Facebook page. Id. ¶ 158. In the months that followed, she was invited to appear
on Carlson’s show only four more times. Id. ¶ 159. In 2020, she was told by Carlson’s staff that Carlson
was no longer interested in having her on his show at all. Id. ¶ 163.
V.

Ed Henry
In May 2019, following the taping of a show Henry was hosting at Fox News’s New York City

studio, Areu and Henry took a picture together on Areu’s phone, which she then sent to Henry via text
message. Compl. ¶ 168. After obtaining Areu’s cell phone number through that text message, Henry
sent Areu what she described as a “slew of wildly inappropriate sexual images, messages and videos …
including many texts in which he implied that Ms. Areu should have sex with him and that he would
assist Ms. Areu’s career if she did so.” Id. He also texted her on one occasion that he would “buy [her]
wine” if she “perform[ed] tasks,” a remark she took to be sexual. Id. ¶ 80. The two later engaged in a
phone conversation about Areu’s desire for paid employment at Fox News. Id. ¶ 174. During this call,
Henry “berat[ed]” Areu for being “boring,” which Areu interpreted as meaning “[un]willing to engage
in sexual acts with him.” Id.

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Following this phone call, Henry ceased communicating with Areu. Id. ¶ 175. When confronted
with why he had not responded to her, he told Areu “you decided to be a jerk which made me sad.” Id.
¶ 175.
Areu further notes in the Complaint that during an investigation into sexual harassment at Fox
News, “multiple women complained that Mr. Henry had subjected them to sexual harassment and/or
unwanted sexual messages.” Id. ¶ 26. She also alleges that “Fox News, including, upon information
and belief, Fox News’s Executive Vice President of Human Resources, Kevin Lord, as well as Fox
News’s President and Executive Editor, Jay Wallace, and Fox Business Network’s President, Lauren
Peterson, was on notice of Mr. Henry’s sexual misconduct towards other women at Fox at least as early
as 2017.” Id. ¶ 36. No disciplinary action was taken against Henry at that time. Id. ¶¶ 27, 36.
VI.

Howard Kurtz
Areu alleges that she was “a relative regular” on Kurtz’s show, “Media Buzz,” from 2017 through

2020. Compl. ¶ 108. Unlike some other Fox News anchors, Kurtz booked guest contributors for his
show himself, rather than through a booking agent. Id. ¶ 109. He would frequently contact Areu directly,
asking her to appear on his show. Id.
On July 9, 2019, Areu learned that both she and Kurtz were in New York City and sought to meet
with him to discuss the prospect of obtaining a paid contributor position at Fox News. Id. ¶ 115. By
email, Kurtz suggested that Areu meet with him in the lobby of his hotel in the evening. Id. ¶ 116. Areu
declined the invitation, but invited Kurtz to dinner with her and a friend. Id. He declined that invitation,
but the two tentatively agreed to meet after dinner. Id. Around 9:00 p.m. that night, Kurtz told Areu
that he “[d]idn’t get much sleep last night so [he was] going to bed.” Kurtz. Decl. Ex. 1 at 6. 3 At 9:16
As a general rule, a court may only consider the facts alleged in the complaint on a motion to dismiss. See, e.g., Radiancy,
Inc. v. Viatek Consumer Prods. Group, 138 F. Supp. 3d 303, 316 (S.D.N.Y. 2014). Nonetheless, where documents are
either integral to the complaint or incorporated into the complaint by reference, a court may consider those documents as
well. See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002). During oral argument, the parties
agreed that because Areu had incorporated portions of her email conversation with Kurtz from that night in the Amended
Complaint, the Court was permitted to consider the entire email conversation from that night. See Tr. at 18:9–12; 30:20–

3

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p.m. Areu responded “What?! Give me your cell. I’ll be right there. I’m totally available right now!!!!!!”
Id. When Kurtz did not respond, Areu emailed him again at 9:21 p.m. “What’s your room number?
What name are you under? What’s your cell? I’m coming over. We can do it the easy way or the hard
way.” Id. at 7. Kurtz did not respond to these messages. Compl. ¶ 118. According to Areu, the reason
she sent these messages so late at night was because she hoped they would be received “too late and Mr.
Kurtz would be asleep or unavailable,” thus allowing Areu to avoid meeting Kurtz without being rude
to him. Id. ¶ 117.
Kurtz later told Areu, “I have to remember that you’re the only woman here who tells me she’s
at a hotel to simply tell me she’s there. You don’t invite me over or come to my hotel room…I’ve made
a mental note.” Id. ¶ 120. After this incident, Areu appeared on Kurtz’s show only three more times.
Id. ¶ 121. Following her last appearance, Kurtz criticized her performance, which Areu alleges was out
of character with the “years of [him] being pleased with her appearances.” Id. ¶ 122.
VII.

Other Male Contributors
In the Complaint, Areu also makes reference to three other male contributors at Fox News: Dan

Bongino, Gianno Caldwell, 4 and Lawrence Jones. These men were hired by Fox News as paid
contributors during the same time period in which Areu was working as an unpaid contributor. Compl.
¶¶ 66, 68, 70. Areu alleges that none of these men went through a lengthy audition process like she did,
but were instead hired in a matter of months. Id. ¶¶ 65, 66, 68. She also asserts that they were not subject
to the same pattern of sexual harassment to which she and other female applicants were allegedly
subjected. Id. ¶ 71.

31:11; see also Kaplan v. Wings of Hope Residence, Inc., 18-CV-2972 (ADS) (AKT), 2020 WL 616630, at *4 (E.D.N.Y.
Feb. 7, 2020) (considering text messages “proffered by the Defendants” because “[i]n his amended complaint, the Plaintiff
made express references to [those] text messages”).
4
Areu also makes allegations against Caldwell in the Complaint, although he is not named as a defendant in this lawsuit.
Specifically, Areu alleges that Caldwell sent her a video of himself with Ann Coulter, allegedly knowing that Areu was
interested in meeting Coulter, with the message “We def need to get together.” Compl. ¶¶ 130–132. When Areu responded
by offering to take Caldwell and Coulter to lunch, Caldwell responded, “Take me to lunch.” Id. ¶ 137.

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VIII.

Areu’s Complaints
In July 2020, Areu emailed Amy Sohnen, the Vice President of Talent Development at Fox News,

and reported that she had received pornographic text messages from Henry and that Henry was “not the
only one” who had sent her such texts. Compl. ¶¶ 185-186. She subsequently filed a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 9. On September
9, 2020, at Areu’s request, the EEOC issued a “right to sue” letter. Id.; see also 20-CV-5593, Dkt. 42
(notice of Areu’s receipt of right-to-sue letter).
IX.

This Lawsuit
On July 20, 2020, in conjunction with former Fox News employee Jennifer Eckhart, Areu filed

a complaint that alleged discrimination and retaliation under the New York State Human Rights Law
(the “NYSHRL”) and the New York City Human Rights Law (the “NYCHRL”). 20-CV-5593, Dkt. 1.
After obtaining a right to sue letter from the EEOC, Areu added claims under Title VII of the Civil Rights
Act of 1964 (“Title VII”).
On or around August 7, 2020, counsel for Fox News, Carlson, Hannity, and Kurtz served Areu’s
then counsel—Douglas H. Wigdor and Michael J. Willemin of Wigdor LLP—with notice that these
Defendants intended to seek sanctions against Areu and Wigdor under Federal Rule of Civil Procedure
11(c). See 20-CV-5593, Dkt. 32. As required by Rule 11, Defendants indicated that they would give
Plaintiff’s counsel 21 days to amend the complaint before filing the contemplated sanctions motion. Id.
On August 27, 2020, Areu retained new counsel: James Vagnini of Valli Kane & Vagnini LLP.
20-CV-5593, Dkt. 36. The Court then granted Areu a 14-day extension of the Rule 11 safe harbor,
allowing her until September 11, 2020 to file an amended complaint or response to the Rule 11 notice.
20-CV-5593, Dkt. 35.
Areu timely filed an amended complaint. 20-CV-5593, Dkt. 38. Insisting that this amended
complaint did not resolve the issues identified in the safe-harbor notice, Fox News, Carlson, Hannity,
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and Kurtz filed a motion for sanctions against Areu, Wigdor, and Vagnini on September 29, 2020. 20CV-5593, Dkt. 52.
On October 8, 2020, after hearing argument and receiving letters from all parties on the matter,
the Court ordered that this action be severed from Eckhart’s lawsuit. 20-CV-5593, Dkt. 75. The actions
were severed on October 19, 2020. Dkt. 1.
On October 19, 2020, Areu filed the operative Complaint in this docket. Dkt. 2. Defendants
responded with the instant motions to dismiss. Dkt. 3; Dkt. 6.
LEGAL STANDARD
On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),
a court must accept as true all well-pled facts and draw all reasonable inferences in the light most
favorable to the plaintiff. Kassner, 496 F.3d at 237. “To survive a motion to dismiss, the plaintiff’s
pleading 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 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is plausible on its face if it allows ‘“the reasonable inference that the
defendant is liable for the misconduct alleged.’” Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 323 (2d
Cir. 2021) (quoting Iqbal, 556 U.S. at 678). “The role of the court at this [Rule 12(b)(6)] stage of the
proceedings is not in any way to evaluate the truth as to what really happened, but merely to determine
whether plaintiff’s factual allegations are sufficient to allow the case to proceed.” Doe v. Columbia
Univ., 831 F.3d 46, 59 (2d Cir. 2016).

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DISCUSSION
I.

Subject Matter Jurisdiction and Exhaustion of Administrative Remedies
As a preliminary matter, the Court must determine whether it has jurisdiction to address Areu’s

claims.
In the Complaint, Areu asserts that subject matter jurisdiction exists 1) because she has brought
claims under federal law, thus allowing the court to exercise federal-question jurisdiction pursuant to
28 U.S.C. § 1331; and 2) because complete diversity exists between her and Defendants, whom she has
sued for over $75,000 in damages, thus allowing the court to exercise diversity jurisdiction pursuant to
28 U.S.C. § 1332. Compl. ¶ 11. Following Defendants’ attestation that Areu and Defendant Carlson
are both residents of Florida, Fox Mem. at 5, Areu appears to have dropped her claim of diversity
jurisdiction. Accordingly, she may pursue her claims only if federal-question jurisdiction exists.
Because she has alleged violations of Title VII, a federal statute, her claims involve a question of federal
law. See Fort Bend County v. Davis, 139 S. Ct. 1843, 1850 (2019) (“Federal courts exercise jurisdiction
over Title VII actions pursuant to 28 U.S.C. § 1331’s grant of general federal-question jurisdiction, and
Title VII’s own jurisdictional provision, 42 U.S.C. §2000e-5(f)(3).”).
Defendants counter that Areu has failed to comply with Title VII’s administrative-charge-filing
requirement, and that this Court thus lacks jurisdiction over this action. Fox Mem. at 6. Pursuant to the
Supreme Court’s 2019 decision in Fort Bend County v. Davis, however, “Title VII’s charge-filing
requirement is . . . . not a jurisdictional prescription delineating the adjudicatory authority of courts” but
rather a “claim-processing rule.” 139 S. Ct. at 1850-51. Nevertheless, because that rule is mandatory, a
failure to satisfy the charge-filing requirement is no less fatal to a plaintiff’s Title VII claim than if the
rule were jurisdictional. The Court must therefore assess whether Areu satisfied this requirement before
addressing the merits of her allegations.

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Title VII permits a private plaintiff to file suit in federal court, but only after that plaintiff has
exhausted her administrative remedies and received notice of her “right to sue” from the EEOC. See,
e.g., Hernandez v. Premium Merch. Funding One, LLC, 19-CV-1727 (WHP), 2020 WL 3962108, at *3
(S.D.N.Y. Jul. 13, 2020) (citing 42 U.S.C. § 2000e-5). Before a right-to-sue letter may be issued, a
plaintiff must file an administrative charge with the EEOC and give the EEOC the opportunity to
investigate the charge and determine whether it wishes to bring suit on the plaintiff’s behalf. 42 U.S.C.
§ 2000e-5(b). If the EEOC declines to prosecute the case itself—or if it fails to begin its own civil action
within 180 days of the filing of the administrative charge—then a right-to-sue letter must be issued. Id.
§ 2000e-5(f).
Yet a plaintiff need not always wait the full 180 days to bring suit. Pursuant to EEOC regulation,
in instances where “the District Director, the Field Director, the Area Director, the Local Director, the
Director of the Office of Field Programs or upon delegation, the Director of Field Management Programs
has determined that it is probable that the Commission will be unable to complete its administrative
processing of the charge within 180 days from the filing of the charge,” the Commission will issue a
right-to-sue letter upon request, regardless of how many days have passed since the filing of the
administrative charge. 29 C.F.R. § 1601.28(a)(2).
Here, the EEOC appears to have issued Areu a right-to-sue letter pursuant to this regulation. It
issued the letter fewer than 180 days after Areu first filed an administrative charge with the EEOC, upon
her request and after finding that “it is unlikely that the EEOC will be able to complete its administrative
processing within 180 days from the filing of this charge.” 20-CV-5593, Dkt. 42. Defendants assert
that this letter was issued in violation of the statute and is thus invalid. Fox Mem. at 7–8.
Defendants’ argument essentially challenges the validity of the EEOC’s regulation permitting
early right-to-sue letters. In Hernandez v. Premium Merchant Funding One, LLC, Judge Pauley
addressed a nearly identical challenge to this regulation and concluded—after a thorough analysis
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conducted under the framework set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc.—that the practice of issuing early right-to-sue letters does not violate the statute. See 2020 WL
3962108, at *6–7 (citing 467 U.S. 837, 842–43 (1984)). Defendants have not articulated a compelling
reason to depart from Judge Pauley’s conclusion or to disregard his persuasive analysis of the issue. The
Court thus declines to do so at this time. Finding no other flaw in Areu’s right-to-sue letter, the Court
deems it sufficient to permit Areu to bring claims under Title VII in this action.
Neither Defendants’ challenge to subject matter jurisdiction nor their argument about Plaintiff’s
exhaustion of administrative remedies suffice as grounds on which to dismiss the Complaint.
II.

Title VII, the NYSHRL, and the NYCHRL — Gender Discrimination
A. Discriminatory Employment Practices
Areu alleges that “Defendant Fox News has discriminated against [her] on the basis of her gender

in violation of Title VII by subjecting her to disparate treatment based upon her gender, including, but
not limited to, subjecting her to sexual harassment and a hostile work environment.” Compl. ¶ 191. In
her opposition to the instant motion, as well as at oral argument, Areu also raised a claim of quid pro
quo sex discrimination. See Areu Fox Opp. at 11–14; Tr. at 35:24–36:4. She claims that as a result of
this harassment, she “was denied the opportunity to work in an employment environment free of
unlawful discrimination.” Compl. ¶ 191. As Defendants rightly note, however, an employer “logically
cannot discriminate against a person in the ‘conditions or privileges of employment’ if no employment
relationship exists.” Wang v. Phx. Satellite Television US, Inc., 976 F. Supp. 2d 527, 532 (S.D.N.Y.
2013); see also Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125, 136 (2d Cir. 1999) (“It is inherent
in the definition of a [] hostile work environment . . . that the person against whom the hostility is directed
must be in an employment relationship with the employer.”); Mormol v. Costco Wholesale Corp., 364
F.3d 54, 57 (2d Cir. 2004) (stating that “quid pro quo” harassment requires alteration of the terms and
conditions of plaintiff’s “employment”).
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As a threshold matter, then, the Court must determine whether Areu was a Fox News employee.
1. Title VII
“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).

The second step requires the Court to weigh the following thirteen factors articulated by the Supreme Court in Community
for Creative Non-Violence v. Reid, 490 U.S. 730 (1989): (1) “the hiring party's right to control the manner and means by
which the product is accomplished”; (2) “the skill required”; (3) “the source of the instrumentalities and tools”; (4) “the
location of the work”; (5) “the duration of the relationship between the parties”; (6) “whether the hiring party has the right
to assign additional projects to the hired party”; (7) “the extent of the hired party's discretion over when and how long to
work”; (8) “the method of payment”; (9) “the hired party's role in hiring and paying assistants”; (10) “whether the work is
part of the regular business of the hiring party”; (11) “whether the hiring party is in business”; (12) “the provision of
employee benefits”; and (13) “the tax treatment of the hired party.” Id. at 751–52.
5

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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.
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

The Court notes that most of the benefits Areu alleges to have received have already been rejected by the courts of this
Circuit as insufficiently substantial to qualify as remuneration. See Hughes, 304 F. Supp. 3d at 443 (holding that hair,
makeup, and transportation “fall short of the ‘minimum level of significance or substantiality’ required to establish
employee status in the absence of a salary” because “[t]hey are merely benefits incidental to the activity performed—
appearances on Fox’s television program” (quoting York v. Assoc. of the Bar of the City of N.Y., 286 F.3d 122, 126 (2d Cir.
2002))).
6

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In sum, Areu 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.
2. The NYSHRL
The NYSHRL does not specifically define “employee.” See N.Y. Exec. Law § 292. Courts have
held, however, that “the standards for recovery under [the NYSHRL] . . . are the same as the federal
standards under [T]itle VII[.]” Forrest v. Jewish Guild for the Blind, 819 N.E.2d 998, 1006 n.3 (N.Y.
2004); see also Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d Cir. 1996) (considering
plaintiff’s “state law claims in tandem with [the] Title VII claims because New York courts rely on
federal law when determining claims under the New York Human Rights Law”). Accordingly, Areu is
not a Fox News employee under state law for the same reasons she is not a Fox News employee under
Title VII.
The Complaint asserts that “Ms. Areu is also a covered ‘non-employee’ under the NYSHRL . . .
as she worked as a contractor and/or vendor and/or consultant for Fox News Network, LLC.” Compl.
¶ 16. Yet the NYSHRL only covers non-employees who “provid[e] services [to an employer] pursuant
to a contract in the workplace or who [are] employee[s] of such contractor, subcontractor, vendor,
consultant or other person providing services pursuant to a contract in the workplace.” N.Y. Exec. Law
§ 296-d. In her opposition to the instant motion, Areu claims that she “had an unwritten contract [with
Fox News] wherein she performed services in exchange for plugs for her company/magazine, which she
specifically negotiated with Defendants.” Areu Fox Opp. at 10. Yet the Complaint makes no mention
of this purportedly unwritten contract. The Court will therefore disregard this factual contention. See
Goodman, 850 F. Supp. 2d at 380; Houston, 2008 WL 818745, at *9.
Areu has thus not alleged that she was a covered non-employee as defined by the NYSHRL.

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3. The NYCHRL
The NYCHRL makes it unlawful for an “employer” to discriminate against “any person . . . in
compensation or in terms, conditions or privileges of employment.” N.Y.C. Admin Code § 8-107(1)(a).
Although this statutory provision does not use the word employee, “[c]ourts have routinely found that
the threshold remuneration condition that is essential for an individual to qualify as an ‘employee’ under
Title VII and the NYSHRL also applies to NYCHRL claims.” Ayyaz v. City of New York, 19-CV-1412
(LTS) (SN), 2021 WL 1225684, at *7 (S.D.N.Y. Mar. 31, 2021) (citing Wang, 976 F. Supp. 2d at 536
(holding that the plain meaning of the NYCHRL, the case law, interpretations of Title VII and the
NYSHRL, as well as legislative history support the conclusion that unpaid interns are not protected by
the NYCHRL)). Areu thus is not a Fox News employee under the NYCHRL law for the same reasons
she is not a Fox News employee under Title VII or the NYSHRL.
Like the NYSHRL, the NYCHRL covers some non-employees. Specifically, the law protects
“interns, freelancers and independent contractors.” N.Y.C. Admin Code § 8-107(23). Areu does not
purport to have been an intern at Fox News. Nor was she a freelancer, a term defined by New York
City’s Freelance Isn’t Free Act (“FIFA”) as one that is “hired or retained as an independent contractor
by a hiring party to provide services in exchange for compensation.” Id. § 20-927; see Turner v.
Sheppard Grain Enterprises, LLC, 68 Misc. 3d 385, 387 (N.Y. Sup. Ct. 2020) (finding that plaintiff was
a freelancer where evidence showed that the plaintiff “provide[d] his operations management expertise
to defendant in exchange for compensation”). Because Areu never received compensation from Fox
News, she also does not qualify as an independent contractor, which New York law defines as one who
“agrees to do a specific piece of work for another for a lump sum or its equivalent who has control of
himself and his helpers, as to when, within a reasonable time, he shall begin and finish the work, as to
the method, means or procedure of accomplishing it.” Beach v. Velzy, 143 N.E. 805, 806 (N.Y. 1924);
see also Favale v. M.C.P. Inc., 125 A.D.2d 536, 536 (N.Y. App. Div. 1986).
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In sum, Areu has not plausibly alleged that she is either an employee or covered non-employee
of Fox News under any of the applicable laws. This deficiency in her pleadings, notably her failure to
allege that she received any cognizable remuneration for her appearances on Fox News, is fatal to her
discrimination claims under all three statutes—regardless of whether that discrimination entailed sexual
harassment, a hostile work environment, or quid pro quo discrimination.
B. Failure to Hire
Areu further alleges that Fox News discriminated against her because it failed to hire her as a
paid contributor and did so on the basis of her gender. Compl. ¶ 192. A “‘failure-to-hire claim is
distinguishable from other employment discrimination claims in that it necessarily applies in most
circumstances to non-employees seeking employment positions rather than current employees. The
relevant employment status inquiry in a failure-to-hire claim is the status of the position an applicant is
seeking rather than the current relationship between the applicant and the would-be employer.’” Hughes,
304 F. Supp. 3d at 445 (quoting Suri v. Foxx, 69 F. Supp. 3d 467, 475–76 (D.N.J. 2014)). Consequently,
Areu’s status as a non-employee does not prevent her from raising a claim of discriminatory failure to
hire.
Pursuant to Title VII, a plaintiff alleging such a claim “must first make out a prima facie case of
discrimination by showing that (1) [s]he is a member of a protected class, (2) [s]he was qualified for the
job for which s[]he applied, (3) [s]he was denied the job, and (4) the denial occurred under circumstances
that give rise to an inference of invidious discrimination.” Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). The NYSHRL applies the same standard. See Carr v. North Shore - Long Island
Jewish Health Sys., 14-CV-3257 (JS) (SIL), 2015 WL 4603389, at *2 n.2 (E.D.N.Y. July 30, 2015)
(citing Mittl v. New York State Div. of Human Rights, 794 N.E.2d 660, 662 (N.Y. 2003)). To survive a
motion to dismiss, a plaintiff alleging discriminatory failure to hire under the NYCHRL must plead facts
sufficient to support an inference that she has “‘been treated less well at least in part because of a
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protected trait.’” Jablonski v. Special Counsel, Inc., 16-CV-5243 (ALC), 2017 WL 4342120, at *5
(S.D.N.Y. Sept. 28, 2017) (emphasis omitted) (quoting Bell v. McRoberts Protective Agency, 15-CV0963 (JPO), 2016 WL 1688786, at *4 (S.D.N.Y. Apr. 25, 2016)).
In the Complaint, Areu attempts to raise an inference of discrimination by contrasting her
inability to obtain a paid contributor position at Fox News with the experiences of three male
contributors: Dan Bongino, Gianno Caldwell, and Lawrence Jones. Compl. ¶¶ 65–70. She alleges that
each of these three men were quickly hired by the network without the long period of unpaid contributor
status to which Areu was subjected. Id. While this may be true, Areu alleges too few facts about these
men and their qualifications to raise an inference of discrimination, even at the pleading stage. It is well
established in this Circuit that a plaintiff seeking to raise an inference of discrimination through disparate
treatment “must show she was ‘similarly situated in all material respects’ to the individuals with whom
she seeks to compare herself.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (quoting
Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.1997)); see also Bucek v. Gallagher
Bassett Servs., Inc., No. 16-CV-1344, 2018 WL 1609334, at *14 (S.D.N.Y. Mar. 29, 2018) (collecting
cases and holding that the plaintiff must provide evidence of proposed comparator’s relevant
characteristics, such as prior experience). Absent any information about Bongino, Caldwell, and Jones—
other than their gender and that they were hired as paid contributors without a lengthy audition process—
Areu has not raised an inference of discrimination, even under the NYCHRL’s more lenient standard.
The Court cannot conclude that their hiring is evidence that Fox News was acting with discriminatory
intent when it failed to hire Areu as a paid contributor.
The Complaint thus fails to plausibly plead a claim of discriminatory failure to hire under any of
the three applicable laws.

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III.

Title VII, the NYSHRL, and the NYCHRL — Retaliation
Unlike in the context of employment discrimination, Areu’s non-employee status at Fox News

does not preclude her from bringing a retaliation claim against Defendants. See Hicks v. Baines, 593
F.3d 159, 165 (2d Cir. 2010) (“Title VII’s anti-discrimination and anti-retaliation provisions ‘are not
coterminous’; anti-retaliation protection is broader and ‘extends beyond workplace-related or
employment-related retaliatory acts and harm.’” (quoting Burlington N. and Santa Fe Ry. Co. v. White,
548 U.S. 53, 67 (2006))). To plead a prima facie case of retaliation, a plaintiff “‘must show (1)
participation in protected activity; (2) that the defendant knew of the protected activity; (3) an adverse
employment action; and (4) a causal connection between the protected activity and the adverse
employment action.’” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (quoting
McMenemy v. City of Rochester, 241 F.3d 279, 282–83 (2d Cir. 2001)). Under Title VII and the
NYSHRL, an action qualifies as an adverse employment action only if it is “‘materially adverse to a
reasonable employee or job applicant.’” Hicks, 593 F.3d at 165 (quoting White, 548 U.S. at 54). Under
the NYCHRL, on the other hand, an action may be adverse if it is “reasonably likely to deter a person
from engaging in protected activity.” N.Y.C. Admin. Code § 8-107(7); Fletcher v. Dakota, Inc., 99
A.D.3d 43, 51–52 (N.Y. App. Div. 2012) (holding that the NYCHRL prohibits retaliation of any kind
that “disadvantaged” a plaintiff even if it does qualify as a materially adverse change to the plaintiff’s
employment).
Here, the Complaint alleges four forms of retaliation. The Court will discuss each in turn.

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A. Career Opportunities and Advancement
The crux of Areu’s retaliation claims lies in her allegation that her refusal to “play along” with
the Individual Defendants’ sexual or sexist comments and romantic overtures motivated them to retaliate
against her by declining to provide her career advice and assistance and, in some cases, ceasing to invite
her to appear on their shows. See Areu Fox Opp. at 18–19 (“After Areu refused the [I]ndividual
Defendants’ clear and/or implied advances, each subjected her to retaliation with respect to appearances
on their shows and/or their refusal to interact with her regarding story ideas.”).
In response, Defendants contend that these claims fail as a matter of law because refusing an
unwanted sexual advance is not protected activity. Fox Mem. at 18. It is true that some judges in this
District have concluded that “resisting a supervisor’s sexual advance, without more, is not enough to
state a claim for a retaliation.” Williams v. N.Y.C. Dep’t of Educ., 19-CV-1353 (CM), 2019 WL 4393546,
at *12 (S.D.N.Y. Aug. 28, 2019); see also Del Castillo v. Pathmark Stores, Inc., 941 F. Supp. 437, 439
(S.D.N.Y. 1996) (holding that plaintiff’s “modest allegations” of sexual advances from her supervisor
could “hardly suffice to support a retaliation claim”). Yet other judges in this District—as well as “the
majority of courts” within the Circuit—have held otherwise. Johnson v. MediSys Health Network, 10CV-1596 (ERK) (VVP), 2011 WL 5222917, at *16 (E.D.N.Y. June 1, 2011); see also Hughes, 304 F.
Supp. 3d at 447; Laurin v. Pokoik, 02-CV-1938 (LMM), 2005 WL 911429, at *4 (S.D.N.Y. Apr. 18,
2005); Little v. Nat’l Broad. Co., Inc., 210 F. Supp. 2d 330, 386 (S.D.N.Y. 2002). The Court shares the
majority view.
A “protected activity” as defined in 42 U.S.C. § 2000e-3 is an “action taken to protest or oppose
statutorily prohibited discrimination.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000).
There is no question that sexual harassment is prohibited discrimination. Cf. Prophete-Camille v.
Stericycle, Inc., 14-CV-7268 (JS) (AKT), 2017 WL 570769, at *11 (E.D.N.Y. Feb. 13, 2017) (remarking
that the plaintiff had “oppos[ed] statutorily prohibited conduct—namely, [the defendant’s] sexual
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harassment”). In the Court’s view, resisting or opposing workplace sexual harassment—a category that
may include a refusal to engage in unwanted sexual activity—must be protected activity within the
confines of Title VII. In other words, when an individual in a position of power penalizes another at
work or denies that person business opportunities for refusing to engage sexually, he or she commits
actionable retaliation.
Whether Areu has plausibly alleged that she engaged in the above-described protected activity,
however, is a separate inquiry, as is whether this purported protected activity motivated Defendants to
take any adverse actions against her. The Court will proceed through these inquiries allegation by
allegation.
1. Tucker Carlson
In the Complaint, Areu recounts an incident in which Tucker Carlson allegedly asked her to
remain in the studio after his show finished filming, at which time he “changed his clothes in front of
her” and made comments to her about how “he would be alone in New York City that night, and …
would be staying alone in his hotel room.” Compl. ¶¶ 148, 150. Areu claims that she responded to
Carlson’s comment by turning the conversation to work. Id. ¶¶ 153–154. After Carlson purportedly
made a joke about Areu to his two male colleagues who remained in the room, Areu left the studio. Id.
¶¶ 154–156. In her opposition to the instant motion, Areu characterizes the above conduct as a
“refus[al]” of “[Carlson’s] clear and/or implied [sexual] advances.” Areu Fox Opp. at 19.
As noted above, this Court is of the firm view that refusing a sexual advance may indeed amount
to protected activity. But even when reading the Complaint in the light most favorable to Areu, the Court
cannot conclude that Areu has plausibly alleged refusal of a sexual advance from Carlson. To begin
with, Carlson did not proposition Areu. While he allegedly mentioned that he was staying alone in his
hotel room in New York, he did not invite her to his hotel room—or anywhere for that matter—nor did
he even identify the hotel at which he was staying. See Compl. ¶ 150. The Court is well aware that
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many sexual propositions are subtle, but the mere mention—in the presence of others—of staying alone
in an unnamed hotel does not suffice in these circumstances. It is true that Areu alleges that just prior to
this statement, Carlson “began changing his clothes in front of [her] and one other male employee.” Id.
¶¶ 148–149. Changing clothes in front of someone while mentioning staying alone in a hotel could
surely, in many a circumstance, amount to a sexual advance. But if Carlson, just off his program, had
changed clothes in a fashion that was either revealing or at all sexually suggestive, the Court assumes
that Areu would have so alleged. She has not. Although Carlson’s alleged conduct could conceivably
be consistent with a sexual advance, albeit subtle, it is also “just as much in line” with innocuous, lawful
behavior in these particular circumstances. See Twombly, 550 U.S. at 554.
In any event, even assuming Areu has plausibly alleged that Carlson was in fact “suggest[ing] a
sexual encounter with him (whether it was that evening or at some point in the future),” id. ¶ 150, she
has not pled that, in response, she took any “action … to protest or oppose statutorily prohibited
discrimination,” Cruz, 202 F.3d at 566. The only action Areu cites is the ambiguous assertion that “she
refused to play along.” Compl. ¶ 152. To be clear, in certain cases, silence or a refusal to engage with
a sexual proposition—perhaps a failure to go to a hotel room upon an invitation—may convey a rejection
of that proposition. See Johnson, 2011 WL 5222917, at *16. But for silence or a refusal to “play along”
to be fairly interpreted as an opposition to or rejection of a sexual advance, either the advance or the
refusal must be sufficiently clear so as to permit an inference that opposition to sex discrimination was
communicated to the defendant. See Lenzi, 944 F.3d at 113 (protected activity only if employer could
“reasonably have understood” that employee was complaining about discrimination).
This is not that case. Here, the ambiguity in both Carlson’s purported advance and Areu’s
purported refusal to that advance prevent the Court from concluding that Areu has plausibly alleged that
she engaged in protected activity within the meaning of the anti-retaliation laws.
Areu has thus failed to adequately plead a claim of retaliation against Carlson.
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2. Howard Kurtz
In the Complaint, Areu recounts one occasion on which Howard Kurtz invited her to meet him
in the lobby of his hotel. Compl. ¶¶ 115–116. The two had apparently been communicating for several
months about Areu’s prospects for a paid position at the network, and Areu alleges that after she reached
out, Kurtz invited her to meet with him in the lobby of his hotel. Id. When Areu “politely declined” the
invitation but invited Kurtz to dinner with her and a friend instead, he demurred. Id. ¶ 116. The two
then tentatively agreed to meet after Areu’s dinner, but Kurtz emailed to tell her that he was going to
bed. See Kurtz Decl. Ex. 1 at 6. Seven minutes later, at 9:16 p.m., Areu responded that she was “totally
available right now” and would be “right there.” Receiving no response, Areu emailed again five
minutes later to ask him his room number and declare that she was “coming over.” Id. at 7. Kurtz
apparently did not respond that night. See id. The following day, in the “greenroom before [his show]
went live,” Kurtz told Areu “I have to remember that you’re the only woman here who tells me she’s at
a hotel to simply tell me she’s there. You don’t invite me over or come to my hotel room . . . I’ve made
a mental note.” Compl. ¶ 120.
As with Carlson, Areu characterizes her conduct as a “refus[al]” of “[Kurtz’s] clear and/or
implied [sexual] advances.” Areu Fox Opp. at 19. Taken in isolation, Kurtz’s comment to Areu about
the “mental note” he made when she “[did]n’t invite [him] over or come to [his] hotel room” lends
support to the allegation that he reacted in a retaliatory fashion. But for Areu to state an actionable
retaliation claim against Kurtz, she must satisfy the threshold showing that she “protest[ed] or oppose[ed]
statutorily prohibited discrimination,” Cruz, 202 F.3d at 566. She has not done so. After declining his
initial invitation to meet in the lobby of his hotel, she later made repeated efforts to find him there, even
going so far as to ask him which room he was staying in and insist that she would be “right there.” Kurtz
Decl. Ex. 1 at 7. When considering the email thread as a whole, the Court cannot conclude that Areu
plausibly alleged that she conveyed to Kurtz the rejection of a sexual advance, or any other opposition
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or protest to his conduct. She thus did not engage in protected activity in relation to Kurtz. See Lenzi,
944 F.3d at 113; Richardson, 532 F.3d at 123 (protected activity must be “known to the defendant”).
Areu has thus failed to adequately plead a claim of retaliation against Kurtz.
3. Sean Hannity
Areu has likewise failed to plausibly allege that she engaged in protected activity in relation to
Sean Hannity. As an initial matter, the Complaint lacks factual support for Areu’s assertion that Hannity
made a “clear and/or implied advance[]” toward her, Areu Fox Opp. at 18–19. She recounts that on one
occasion when she brought a male guest into the studio, Hannity asked her about her relationship status,
described her as a “beautiful woman,” “auctioned [her] off” for a date, and pressured her male guest to
take her out. Compl. ¶¶ 95–101. Were Areu an employee of Fox News, this conduct may well be
relevant to a claim for gender discrimination or hostile work environment. That conduct does not,
however, amount to a “clear and/or implied [sexual] advance[],” Areu Fox Opp. at 18–19, even when
viewed in the light most favorable to Areu.
However Hannity’s alleged behavior is characterized, Areu’s claim of retaliation against him
fails because the Complaint contains no allegation that could plausibly be interpreted as her protesting
or opposing discriminatory conduct. See Cruz, 202 F.3d at 566.

According to the Complaint, she

refused to “play along” with Hannity’s “misogynistic” behavior. See Compl. ¶ 102. But she alleges no
facts that indicate that she in fact did so. She later “emailed the show to thank Mr. Hannity for having
her on, and for [paying for] the drinks” because “[a]s anyone in the TV industry will attest, thanking a
show for an appearance is proper etiquette if you want to get asked back.” Id. ¶¶ 101–102. To constitute
protected activity, “‘the complainant must put the employer on notice that the complainant believes that
discrimination is occurring.’” Bass v. NYNEX, No. 02 Civ. 5171, 2004 WL 1941088, at *7 (S.D.N.Y.
Sept. 1, 2004) (quoting Ramos v. City of New York, No. 96 Civ. 3787(DLC), 1997 WL 410493, at *3
(S.D.N.Y. July 22, 1997)). Areu did not do so here.
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Areu has thus failed to adequately plead a claim of retaliation against Hannity.
4. Ed Henry
By contrast, the Court finds that Areu has adequately pled that her rejection of Ed Henry’s
advances constitutes protected activity. Henry is alleged to have sent graphic images and inappropriate
text messages to Areu, which she interpreted as implicitly communicating that “Ms. Areu should have
sex with him and that he would assist Ms. Areu’s career if she did so.” Compl. ¶ 168. Areu claims that
when she did not indicate to Henry that she would be willing to engage in sexual acts with him, he
“berat[ed]” her for being “boring,” then ceased communicating with her. Id. ¶ 174. Drawing all
reasonable inferences in Areu’s favor, these allegations plausibly demonstrate that Areu engaged in the
protected activity of rejecting Henry’s sexual advances and that Henry was aware of that rejection.
Yet Areu has failed to plausibly allege that this protected activity resulted in any adverse action.
While she does claim that he implied via text message that he would assist her career if she had sex with
him, id. ¶ 168, the Complaint contains no allegation that Henry ever actually made such an offer to her
or took any steps to help advance her career at Fox News. Areu claims in her opposition to the instant
motion that after she “refused [Henry’s] sexual advances . . . [he] refused to interact with her” and when
she “attempted to pitch additional stories to him, he did not respond.” Areu Henry Opp. at 23. But Areu
has not alleged that she ever appeared on a show hosted by Henry or that he previously played any role,
direct or indirect, in her position as an unpaid contributor at Fox. In sum, Areu pleads no facts to support
the inference that her refusals of his sexual advances motivated a change in Henry’s behavior that was
professionally detrimental to her. Even under the NYCHRL’s more lax definition of adverse action, a
defendant’s conduct must “disadvantage[]” a plaintiff. See Fletcher, 99 A.D.3d at 51–52 (citing N.Y.C.
Admin. Code § 8-107(7)). The conduct alleged does not suffice to meet either that standard or the more
rigorous standards employed by the NYSHRL and Title VII.
Areu has thus failed to adequately plead a claim of retaliation against Henry.
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B. Failure to Hire
Areu further alleges that Fox News retaliated against her by not hiring her as a paid contributor,
and that the network did so in response to her refusal to engage in quid pro quo sexual relationships with
its male anchors. Compl. ¶ 198. Unlike the decision to invite guest contributors onto their respective
shows, the Individual Defendants are not alleged to have had the authority to make decisions as to the
hiring of paid contributors. Although Areu alleges that Fox News’s male hosts and anchors had the
ability to “make or break one’s career at Fox,” id. ¶ 62, she does not plausibly allege that these men had
any authority to hire a person as a paid contributor. Instead, the Complaint suggests that this decision
was made by a Fox News executive, without specifying precisely who that person might be. See id.
¶ 114 (in July 2019, Areu asked Kurtz how she “should . . . go about convincing Amy and Lauren, or
whoever makes the decision over there” to hire her). Areu has not pled that Fox News’s executives had
knowledge that she engaged in protected activity by allegedly rejecting Henry’s sexual advances. 7
The Court thus concludes that Areu has failed to adequately plead that Fox News failed to hire
her as a paid contributor for retaliatory reasons.
C. Releasing Emails and Filing a Sanctions Motion
The Complaint further alleges that Fox News engaged in two additional forms of retaliation:
filing a Rule 11 sanctions motion and “leaking cherry-picked emails to the media to portray Ms. Areu as
someone who invited sexual harassment.” Compl. ¶¶ 4–5. These actions cannot support a claim for
retaliation because both were reasonable defensive measures, which the Second Circuit has held “‘do
not violate the anti-retaliation provision of Title VII, even though [they are] adverse to the charging
employee and result in differential treatment.’”

Richardson v. Comm. on Human Rights &

Sometime in July 2020, Areu reported to Amy Sohnen, the Vice President of Talent Development, that Henry and others at
Fox News had sent her “pornographic messages.” Compl. ¶¶ 185-186. Because she did not send that email until after she
was allegedly “blacklisted from the majority of Fox News’ most well-known shows in 2019 and … completely removed from
the air in 2020,” id. ¶ 176, however, Areu has not plausibly alleged that such protected activity motivated Fox News
executives to not hire her as a paid contributor.
7

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Opportunities, 532 F.3d 114, 123 (2d Cir. 2008) (quoting United States v. New York City Transit Auth.,
97 F.3d 672, 677 (2d Cir. 1996)); see also Steffes v. Stepan Co., 144 F.3d 1070, 1075 (7th Cir. 1998)
(noting that “it will be the rare case in which conduct occurring within the scope of litigation constitutes
retaliation”).
Hughes v. Twenty-First Century Fox is instructive in this regard. In Hughes, Fox News was
accused of leaking a story to the National Enquirer that painted the plaintiff in a negative light and
advanced an allegedly false narrative regarding the plaintiff’s accusations. See 304 F. Supp. 3d at 449.
Judge Pauley reasoned that “given that [the plaintiff] was expected to charge Fox [News] with sexual
harassment claims, [Fox News’s] attempt to blunt the inflammatory force of her allegations was a
colorable defense to protect their business.” Id. The same is true here. None of the emails released are
alleged to have been doctored or fabricated. Indeed, it is likely that these emails would become public
if this action proceeded to trial.
Similarly, the Court concludes that Defendants’ filing of a Rule 11 sanctions motion in this action
was a permissible litigation strategy. See Gaughan v. Rubenstein, 261 F. Supp. 3d 390, 420 n.4
(S.D.N.Y. 2017) (holding that the filing of motions “as part of . . . defenses in litigation[] … do[es] not
constitute an adverse action for purposes of stating a retaliation or discrimination claim”).
These allegations thus do not form the basis of a claim of retaliation.
IV.

Leave to Amend
Plaintiff has requested leave to further amend her Complaint in the event that any portion of

Defendants’ motions to dismiss is granted. In response, Defendants urge the Court to deny leave to
amend, arguing that it would be “futile” because Areu has “fail[ed] to identify any new facts that she
would allege to make her claims survive.” Fox Reply at 10. While it is true that Areu has not identified
specific facts she would plead in a further amended complaint, the Court is not yet in a position to assume
that further amendment would be futile. See Obra Pia Ltd. v. Seagrape Inv’rs LLC, 19-CV-7840 (RA),
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2021 WL 1978545, at *3 (S.D.N.Y. May 18, 2021) (“Ordinarily a plaintiff should be granted leave to
amend at least once after having the benefit of a court’s reasoning in dismissing the complaint.” (citing
Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec. LLC, 797 F.3d 160 (2d Cir. 2015))).
Areu will thus be granted one final opportunity to amend her Complaint, if she has a good-faith
basis to do so.
V.

Sanctions
Lastly, Defendants Fox News, Carlson, Hannity, and Kurtz have filed a motion for sanctions

pursuant to Federal Rule of Civil Procedure 11 against Areu’s current and former counsel. See Dkt. 13. 8
They assert that Areu’s claims are both factually and legally frivolous, and were brought for an improper
purpose. Sanctions Mem. at 12. Areu’s current counsel seeks sanctions against Defendants in return,
retorting that the Rule 11 motion was itself filed for an improper purpose. See Vagnini Opp. at 26.
Areu’s former counsel does not seek sanctions but requests a declaration that the “filing of the Rule 11
Motion was an improper abuse of the litigation process.” Wigdor Opp. at 27.
Federal Rule of Civil Procedure 11(b) dictates, in relevant part, that when an attorney files
pleadings, that attorney is certifying, to the best of his or her knowledge, that “(1) [the pleadings are] not
being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law; [and] (3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for further investigation or
discovery.” Fed. R. Civ. P. 11(b). Rule 11(c) further provides that “[i]f, after notice and a reasonable
opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an
appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the
8

Defendant Henry is not party to the sanctions motion.

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violation.” Fed. R. Civ. P. 11(c). The Second Circuit has advised courts that Rule 11 sanctions should
be “made with restraint.” Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 334 (2d Cir. 1999);
see also Shin Park v. Seoul Broad Sys. Co., 05-CV-8956 (BSJ) (DFE), 2008 WL 619034, at *1 (S.D.N.Y.
Mar. 6, 2008) (“Courts have cautioned litigants that Rule 11 sanctions are reserved for extraordinary
circumstances.”). The decision to impose sanctions under Rule 11 is always discretionary. See Perez v.
Posse Comitatus, 373 F.3d 321, 325 (2d Cir. 2004). Here, the Court declines to impose sanctions against
either party.
Areu’s claims are not legally frivolous. The Second Circuit defines the term legally frivolous to
mean in this context that “the legal position has ‘no chance of success,’ and there is ‘no reasonable
argument to extend, modify or reverse the law as it stands.’” Fischoff v. Coty Inc., 634 F.3d 647, 654
(2d Cir. 2011) (quoting Morley v. Ciba-Geigy Corp., 66 F.3d 21, 25 (2d Cir. 1995)). Although Areu’s
claims fail because she has not pled sufficient facts to support them, the Court now grants her leave to
amend to do so.
Nor are her claims factually frivolous. As an initial matter, some of Areu’s allegations—
including that Henry sent her pornographic images and that Kurtz told her that he “made a mental note”
of the fact that she “d[idn’t] invite [him] over or come to [his] hotel room”—are seemingly undisputed.
Compl. ¶ 120. Defendants do proffer evidence that they claim contradicts other factual allegations
contained in Areu’s complaint. But none of this evidence suffices for the Court, on this record, to
definitively determine that Areu’s allegations are false. A pleading runs afoul of Rule 11(b)(3) only
where, “after reasonable inquiry, a competent attorney could not form a reasonable belief that the
pleading is well grounded in fact.” Kropelnicki v. Siegel, 290 F.3d 118, 131 (2d Cir. 2002) (internal
quotation marks omitted); see Kiobel v. Millson, 592 F.3d 78, 81 (2d Cir. 2010) (“A statement of fact
can give rise to the imposition of sanctions only when the particular allegation is utterly lacking in
support.”).
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Moreover, some of the Defendants’ evidence includes emails and messages from Areu that
allegedly demonstrate that Areu was receptive to the advances of certain Defendants. Sanctions Mem.
at 17–18 (citing Kurtz Decl., Ex. A at 2–5). The Court will not grant sanctions on this basis. As other
courts have previously recognized, a victim of workplace sexual harassment may often feel pressure to
“play nice” or supplicate her harasser in order to avoid harmful professional consequences. See Hughes,
304 F. Supp. 3d at 448. To use this conduct by an alleged victim to discredit her claims would be to
oversimplify what may have been a nuanced and complex situation. See Guzman v. News Corp., No. 09
Civ. 09323 (LGS), 2013 WL 5807058, at *14 (S.D.N.Y. Oct. 28, 2013) (“Civility toward a harasser does
not excuse harassment or signify subjective acceptance, particularly in an employment setting”). Other
factual disagreements—such as the number of times Areu appeared on a given program before and after
the alleged retaliation began—will, if Plaintiff succeeds in stating a claim in her next amended complaint,
be resolved through discovery and need not be addressed at this stage.
Lastly, for the reasons stated above in section III.C., Areu’s sanctions motion also fails.
Recognizing that sanctions are to be used very sparingly in extreme cases, the Court will not impose
sanction on any party.

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CONCLUSION
For the reasons stated above, the motions to dismiss are granted and the motion for sanctions is
denied. Plaintiff’s motion for leave to file an amended complaint is granted. If she so chooses, Plaintiff
must file an amended complaint no later than September 30, 2021. Failure to file an amended complaint
by that date will result in dismissal of this action with prejudice. The Clerk of Court is respectfully
directed to terminate the motions pending at docket entries 3, 6, and 13 in case number 20-CV-8678 and
docket entries 52, 86, and 97 in case number 20-CV-5593.

SO ORDERED.
Dated:

September 9, 2021
New York, New York
RONNIE ABRAMS
United States District Judge

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