Judge Allows Trimmed Lawsuit by Fox News Pundit Who Says She Was Raped

FOX News Generic - Getty - H 2017

Scottie Hughes, a political commentator who once regularly appeared on Fox News, will move forward in a discrimination suit against the cable news network, but only on a limited basis after a federal judge on Tuesday substantially pared her claims.

Hughes alleges that Fox Business host Charles Payne sexually assaulted her in 2013 and she brought a wide-ranging complaint against 21st Century Fox, Fox News, Payne and two executives.

In response to the lawsuit, Fox's attorneys argued that Hughes can't assert claims of discrimination or retaliation because she was not a Fox employee, only an unpaid guest.

U.S. District Court Judge William Pauley III agrees in part.

In an opinion, Pauley writes that travel expenses and the cost of doing her hair and makeup are benefits that fall short of establishing employee status and that any allegations concerning promises to retain her contractually are too vague. Additionally, Pauley won't credit the publicity benefits of appearing on Fox News on a regular basis.

"If such allegations were deemed a financial benefit for purposes of determining employee status, virtually every commentator on a national television network could satisfy the remuneration requirement," states the opinion. "In any event, an incidental benefit of appearing on a nationally televised program is widespread publicity and name recognition, and may not be considered under the financial benefit analysis."

On the other hand, the judge will allow her to pursue failure-to-hire and retaliation claims based on her status as a job applicant.

Fox argued that Hughes never applied for a job, but Pauley responds that her complaint supports the contention that "Fox openly entertained Hughes’ expressions of interest in a full-time contributorship, and induced her into believing that she had a realistic chance of obtaining the position, despite never formally posting it."

The judge also added acknowledgement from Fox that there was no formal application process for full-time contributor positions and speaks to how the news network likes to audition candidates by putting them on air. "Fox used the lure of a full-time contributorship as a carrot and a stick to secure Hughes’ continued appearances," writes Pauley in expressing how the defendant treated her as a qualified candidate, at least until the network decided she was no longer suitable to be a contributor.

Once Hughes reported Payne's alleged rape to Fox, she alleges she was blacklisted. Fox directed an outside law firm to investigate her claims, and Payne ultimately returned to his job after a brief suspension.

In the opinion, Pauley discusses sexual advances and rejections in the workplace.

"This Court is mindful that other courts in this Circuit have expressed divergent viewpoints on whether rejecting sexual advances qualifies as protected activity," he writes. " But in this Court’s view, those positions overlook the complex dynamics underlying a work environment fraught with power disparities. Sexual harassment can manifest itself in many forms. Some are less obvious than others but just as invidious. Formally reporting an incident of sexual assault is one form of protected activity, but it is not always available. An individual who is sexually harassed by her supervisor, or someone with clout within the company, faces a Hobson’s choice — she is either forced to endure her supervisor’s unwanted overtures, or file a complaint that will inevitably bruise his ego and jeopardize her job and career."

The judge comes to the conclusion that Hughes has adequately pled elements of her retaliation claim with allegations including how former top Fox News executive Bill Shine decided that Hughes was to blame for an alleged affair and followed through on threats to end her career at the network.

That noted, the judge is less impressed with the aspect of her retaliation claim that dealt with leaks about her situation to the National Enquirer, opining that employers are entitled to undertake reasonable defensive measures against an employee's charge of discrimination.

Hughes will be able to move forward on the allegation that she would have been hired at Fox News but for her sexual misconduct charge against Payne, but she loses most of the rest of her lawsuit.

For instance, the judge throws out claims asserting that legal affairs executive Dianne Brandi and communications executive Irena Briganti are individually liable for aiding and abetting discrimination. She also loses a defamation claim over statements given to the National Enquirer. The judge says she failed to allege actual malice and damages. And she loses a gender-motivated violence claim against Payne, too.

"Hughes fails to plead gender-specific animus," writes the judge. "Even if this Court credited Hughes’ contention that Payne’s sexual harassment and quid pro quo discrimination was motivated by her gender, the Complaint is devoid of facts demonstrating that Payne’s actions were also motivated, in part, by 'feelings of animosity and malevolent ill will' against women. In this regard, while the alleged rape in 2013, if true, is despicable and undoubtedly constitutes 'discriminat[ion] on the basis of sex,' such an act was not a 'hate crime.'Hughes offers no specific allegations that Payne harbored or expressed any animosity toward women."

The case now moves to discovery, where Fox has suffered the first big defeat.

The defendant attempted to probe Hughes' sexual history including evidence of extramarital relationships. Fox attempted to subpoena radio host Wayne Dupree, podcaster Rusty Humphries, Alex Shively and Tea Party author Dustin Stockton for information. The judge says the relevant question is whether these individuals have anything demonstrating Hughes was a "serial seductress who engaged in a pattern of pursuing relationships with men — like Payne — for the purpose of advancing her career."

Pauley doesn't believe this trail is a wise one.

"Injecting this case with Hughes’ rendezvous with non-parties who have no connection to the subject matter of this litigation will only detract the parties — and later, a jury — from the real issues underlying Hughes’ grievance," the judge writes in a separate decision granting Hughes' bid to quash subpoenas. "Defendants’ purported strategy is superficially appealing, but advances a boorish, reductive narrative that Hughes was predisposed to engaging in self-serving sexual relationships. Hughes’ prior sexual history has no relevance to her claims against Payne, or the defense that she used Payne to advance her career at Fox."

The judge later adds, "If Defendants seek to raise the defense that Hughes used Payne to advance herself at Fox, they need only seek discovery from Hughes, Payne and others at Fox. The prejudice arising from Hughes’ prior sexual history with other men would outweigh what little relevance it may bring to this case."