2:47pm PT by Austin Siegemund-Broka
Viacom, Spike Escape Most Sexual Harassment Claims Over 'Ink Master'
Spike and parent Viacom have gotten dismissed of most of the claims against them from Nicoletta Robinson, who says she encountered sexual harassment working on the competition series Ink Master.
She says Nunez and Peck requested a female assistant, and employees of producer Original Media warned the pair would "torture" her. In the 11 days she claims she worked on the show, she says they inappropriately spoke to her, including asking her if “she likes to suck dicks" and if she was “knocked up" when she felt ill, pinched and tickled her, and made offensive comments in her presence, like calling another judge a "faggot."
When she complained to supervisors, they allegedly replaced her and said her employment would continue on the production, then never called her back. She's suing for sexual harassment and unlawful retaliation.
Nunez, Peck and Original Media are defendants with Viacom and Spike (which recently renewed Ink Master for a seventh season).
The network defendants moved to dismiss the claims, which Robinson filed under the federal Title VII statute, the New York State Human Rights Law and New York City Human Rights Law.
Judge Deborah Batts on Monday granted the request to curtail Viacom and Spike's potential wrongdoing to a single day, Nov. 6, 2013, a "Media Day" for the series. They argued Robinson was the employee of only Original during the rest of the production. She contended Original and Viacom jointly employed her.
The judge disagrees with Robinson’s “joint employer” interpretation.
"Even drawing all reasonable inferences in favor of Plaintiff, the Court cannot infer from this barebones allegation that the Viacom Defendants had ‘immediate control' over her employment on any day other than November 6, or that the Viacom defendants had any authority to influence the broader terms and conditions of Plaintiff’s employment," states the ruling (read here).
The judge notes, however, the documentation of joint employment more likely would be with the defendants, not Robinson, who hasn't had the opportunity to perform discovery. She grants the dismissal with the opportunity for Robinson to amend her complaint with a renewed claim and more evidence.
The verdict on Viacom and Spike’s potential liability on Nov. 6 comes down to the differences in the laws Robinson invokes. Title VII and New York state law require the discrimination to be "severe or pervasive," a standard dependent on the conduct’s frequency, whether physical or verbal conduct, and other factors.
Batts does not think Nunez and Peck's conduct only on Nov. 6 met the standard. Similarly, she dismisses the retaliation claim against Viacom and Spike because Robinson alleges no retaliation on Nov. 6.
However, the judge finds the New York City Human Rights Law, which doesn't require discrimination be "severe and persuasive," covers Nunez and Peck's "inappropriate and overtly sexual" comments on Nov. 6 (including the "suck dicks" line). She permits Robinson to pursue the sexual harassment claim against Viacom and Spike under the city law.
The defendants separately argued Nunez and Peck were Robinson's coworkers and not supervisors, a designation that limits the employer's liability for employees' discriminatory conduct.
The judge denied Viacom and Spike's interpretation of Nunez and Peck's role. She found they were "empowered to take tangible employment actions with respect to Plaintiff, including hiring her and dictating her daily responsibilities,” so they were her supervisors.
Finally, Viacom and Spike requested their claims severed from the claims against the other defendants. Not happening, writes the judge.
"Robinson's claims against the Original Defendants and the Viacom Defendants arise out of a brief, continuous period of employment, present common questions of law and fact and will be proved, if at all, by reference to the same witnesses and documents," states the ruling. "Severing Plaintiff’s claims would serve only to create confusion and inefficiency."
Spike declined to comment. The Hollywood Reporter has requested comment from Robinson's lawyer Kenneth Katz.