Andrea Tantaros Responds to Fox's "Opportunist" Insult With Therapist's Affidavit

She's also arguing that Fox News leaks to reporters vitiates an arbitration provision.
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Sidelined Fox News host Andrea Tantaros is urging a New York judge to keep her sexual harassment lawsuit against Fox News in open court with new papers that include an affidavit from her therapist about counseling that occurred as early as 2014 as well as an email from a reporter.

Tantaros is suing Fox News, ex-chief Roger Ailes, new chief Bill Shine, executive vp legal affairs Dianne Brandi, executive vp corporate communications Irena Briganti and executive vp programming and development Suzanne Scott for retaliation. In a salacious complaint that demands tens of millions of dollars, Tantaros asserts she suffered from Ailes' misbehavior and that the cable news network "operated like a sex-fueled, Playboy Mansion-like cult, steeped in intimidation, indecency, and misogyny."

The legal action was filed in late August, after Gretchen Carlson's lawsuit and amid many news reports about Ailes' behavior toward other women at the network.

Fox News has settled with Carlson, and Ailes was pressured into resigning, but the 21st Century Fox-controlled network is standing firm when it comes to Tantaros.

In a motion to send the case to arbitration, Fox called Tantaros an "opportunist" and a "wannabe," who is trying to deflect from an arbitration proceeding already underway that accuses her of breaching an employment agreement with a book that Fox asserts wasn't properly authorized.

Today, Tantaros rejects this characterization.

"Defendants are desperate to have this dispute heard behind closed doors, because they do not want their appalling conduct to be subject to public scrutiny," states a memorandum opposing arbitration.

The papers continue, "If Defendants were actually entitled to arbitrate this dispute under the law, … they could have achieved that goal by filing straightforward motions to compel arbitrations. But Defendants did not do that. Instead, and true to form, Defendants responded with a vicious, blame-the-victim stye (sic) personal assault against Tantaros."

Her attorney also submitted an affidavit from Michele Berdy, a Manhattan clinical psychologist.

"In 2014, Andrea told me about meetings with Mr. Ailes in his office where he engaged in highly inappropriate and offensive behavior," states Berdy. "I have a very clear recollection that Andrea was very upset that Mr. Ailes had (a) unsuccessfully asked her to turn around for him so he could view her posterior, (b) unsuccessfully asked her to hug him, (c) asked her if she planned to marry, (d) discussed his negative views about marriage, (e) asked her questions about the sexuality and sexual relationships of other people working for Fox News, and (f) made insulting comments about a number of women working for Fox News."

Berdy also recalls being repeatedly told by Tantaros about meetings with Shine about Ailes's alleged treatment toward her as well as the retaliation that followed.

"I recall Andrea being shocked and devastated after a meeting with Mr. Shine in which he told her that she needed to stop complaining about Mr. Ailes's sexual advances toward her, and his subsequent retaliation," continues Berdy. "He then followed this directive by telling her that she must forget about what Mr. Ailes had done to her, instructing her: 'Don't fight this; because Ailes 'is a very powerful man,' and that she needed to 'let this one go.' Andrea found Shine's warning 'not to fight this' as both very threatening and extremely disturbing. On another occasion, I recall Andrea pleading to Mr. Shine for relief from retaliation by Ailes and Briganti by asking him to 'please let me do my job.'"

Echoing the complaint, the affidavit also talks about Bill O'Reilly, who is not named as a co-defendant.

Says Berdy, "I also recall a number of occasions when Andrea complained to me about recurring unwanted advances from Bill O'Reilly, which included an invitation to his 'very private' beach home, and comments about his perception that she was 'wild.'"

Judd Berstein, Tantaros' lawyer, argues in papers that his client's "prior consistent statements to her therapist" supports that she's telling the truth and not an opportunist.

Ultimately, the judge will need to rule on whether Tanataros' employment agreement mandated arbitration for disputes of this nature.

Fox asserts that the employment agreement is plain and unambiguous in its language that "any controversy, claim or dispute arising out of or relating to this Agreement or your employment" shall be settled by AAA arbitration.

Tantaros disagrees.

Her attorney points out that the words "harassment" or "retaliation" don't appear anywhere in the arbitration provision and reaches to an old case involving the musician Arlo Guthrie for support on the proposition that unexpected tortious behavior can't be foreseen by parties and thus can't be a part of an agreement to arbitrate.

The memorandum argues that "the arbitration agreement here does not contain a clear indication that Plaintiff made a 'conscious decision' to arbitrate claims of sexual harassment and retaliation pursuant to her employment agreement. To the contrary, there is no such indication whatsoever."

The plaintiff is also arguing as an alternative that Fox can't compel arbitration "because of Fox News' prior material breach" by allegedly leaking the fact that Fox News had commenced arbitration against Tantaros. As evidence, Berstein submits an Aug. 10 email from Daily Beast writer Lloyd Grove over what the reporter heard about the arbitration.

States the memorandum, "It cannot reasonably be disputed that the Fox Defendants' disclosures to reporters about (a) the existence of an arbitration provision, (b) the commencement of an arbitration, and (c) the fact that Tantaros had yet to respond in the arbitration, violated the arbitration agreement's confidentiality provision."

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