8:03am PT by Eriq Gardner
Viacom Moves to Dismiss Ex-BET Exec's "Shotgun Pleading" in Discrimination Lawsuit
Not enough facts to support a legal claim. Too many facts to provide a concise and clear summary of wrongdoing. Those are the two argumentative strategies that defendants generally use in attempting to dismiss a complaint at the outset of a lawsuit when judges are beholden to accept the truth of a plaintiff's allegations. In moving to reject claims made by Zola Mashariki, formerly the head of originals at Black Entertainment Television, her ex-employer has opted to contend she's asserting too much without direction in what is being described as a "shotgun pleading."
Mashariki filed suit earlier this month, alleging that BET "fosters a good old boys’ club atmosphere" where the "misogynistic culture ... begins at the top," and that her employment was terminated unfairly while she was on leave for breast cancer. In her suit, she raises concerns about pay disparity, mistreatment of women in meetings, advancement decisions and a lack of credit. She also describes the alleged derogatory comments and intimidation she faced from former president of programming Stephen Hill and accuses BET of not treating it seriously enough and later, tarnishing her reputation in comments to the press.
The lawsuit asserts causes of action for gender discrimination, hostile workplace, violation of the Family Medical Leave Act, Violation of the Equal Pay Act, the implied covenant of good faith and fair dealing, wrongful discharge in violation of public policy, defamation and more.
To which BET responds in a motion to dismiss filed on Tuesday that "it is unclear from her Complaint which allegation(s) is/are intended to support which claim(s) for relief."
"No one should have to guess," the defendant continues. "Indeed, due process compels that Mashariki provide sufficient notice of what facts she contends support her claims as to each of the named Defendants."
BET also is aiming to defeat certain claims with prejudice, meaning Mashariki wouldn't be allowed to amend those. Among them, the cable network disputes the legal viability of Mashariki's claim of defamation.
Mashariki's departure from BET was met with a great deal of confusion. When word got out in late March that she was exiting the network, it appears to have caused some surprise. Mashariki's lawyer insisted then that her client "was not terminated prior to taking medical leave," with network insiders telling the press she was indeed let go because of performance issues that predated her claims of discrimination and retaliation.
According to BET's filing, she was informed on February 28 — the day before she was scheduled to return — that her employment was being terminated, but that out of "compassion and empathy," the network agreed to make the effective date of her termination April 11 after a newly extended leave.
There appears to be some factual dispute here, something the judge probably won't take up at the moment, but what is drawing attention in the short term are those statements to the press about Mashariki's performance and departure.
BET says some of the statements are "too vague to be actionable." This includes a senior BET executive telling employees she was "faking" her condition. It also includes how the company had described Mashariki as "misrepresent[ing] the facts" in her own communications with colleagues.
Some of the comments rising to alleged defamation appear to have been given to the press "on background," meaning quotes allowed, but no attribution. Now, BET's lawyer is arguing that Mashariki has failed "to plead sufficient (critical) facts such as who the purported speaker was, and to whom, in what context, or when the statement was purportedly made."
BET is also arguing that a couple of the comments aren't actionable because they aren't untrue.
"Here, Mashariki admits she was told on February 28, 2017, that her employment was being terminated," the motion states. "Thus, BET’s CEO’s statement that Mashariki would be 'departing the network' and, later, [BET senior vp communications Tracy] McGraw’s alleged 'confirmation' that Ms. Mashariki was 'no longer with the network' were both true statements."
It's also argued that Mashariki has failed to plead malice in her defamation claim, which could prime a side dispute over whether the former TV executive qualifies as a "public figure."
Separately, Viacom is asking for an exit from the lawsuit on the basis that Mashariki has failed to show how Viacom could be considered her employer or liable as BET's corporate parent.
Nevertheless, both Viacom and BET are employing the same lawyer in this battle — Elena Baca at Paul Hastings.
Mashariki's attorney, Felicia Medina of Medina Orthwein LLP, issued a statement obtained in response to Viacom's motion: "Viacom and BET's motions are baseless and lack legal and factual merit. We are confident the Court will see through this obvious attempt to delay adjudication of Ms. Mashariki's claims on the merits."
June 1, 6:05 a.m.: Updated with statement from Mashariki's attorney.