Fox Escapes Retaliation Claim From Fired Ad Exec

Fox Generic - Getty - H 2018
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Fox Broadcasting Company has defeated a retaliation claim from a fired employee who challenged the legality of the company's counterclaims against him. 

Cliff Pozner was fired in September 2016 after 22 years with the company amid sexual harassment complaints from two female employees. In April 2017 he sued Fox for allegedly breaching his employment agreement by not paying out his contract and discriminating against him on the basis of religion. He claims the women were using the #MeToo movement as leverage to keep from being transferred to a different department, and that he was really fired because of anti-Semitism within the company.

Instead of just defending itself in that litigation, Fox upped the ante and filed counterclaims against Pozner alleging he breached his contract by violating the policies on sexual harassment detailed in the company's handbook. In August 2018, Pozner filed an amended complaint alleging that Fox's counterclaim is unlawful retaliation. 

Fox argued the claim should be dismissed because the Constitution provides a right to petition for relief unless the complaint is "objectively baseless."

The court agreed.

"As Fox's counterclaim is a petition that seeks redress from the court, pursuant to the Noerr-Pennington doctrine it cannot be the basis of a claim for retaliation," writes New York judge Saliann Scarpulla. "And, the exception to the doctrine for sham litigation is not applicable because I previously determined, in the July 2017 Decision, that Fox adequately pled a breach of contract claim, thus the counterclaim is not objectively baseless."

Scarpulla also didn't buy Pozner's argument that Fox's counterclaims were salacious and prurient. "The fact that Fox expounded on an allegation about sexual harassment that Pozner made in his complaint as part of its defense does not eliminate the immunity afforded by the Noerr-Pennington doctrine," she writes. "Nor does it constitute retaliation."

The dueling breach of contract claims are still pending, as is Pozner's discrimination claim.