Sexual Harassment and Other Claims Dismissed Against Andrew Napolitano

In Fawcett v. Fox News Network, LLC, No. 157135/2021, 2022 WL 445861 (N.Y. Sup Ct, New York County Feb. 14, 2022), the court dismissed plaintiff’s claims of gender discrimination and sexual harassment against defendant Andrew Napolitano.

The court summarized plaintiff’s allegations against this defendant as follows:

Plaintiff began working for Fox Business in March 2019 as an entry-level production assistant. He met Napolitano in late September or early October 2019 while on an elevator going from the 20th floor to the lobby at Fox. Napolitano “stood awkwardly close to [him], stroked his arm, and asked who [he] worked for.” When plaintiff replied that he worked for Lou Dobbs, Napolitano asked if he was “looking for a new job” and told him that Dobbs had a horse farm in New Jersey and that he, Napolitano had a maple syrup farm in New Jersey. Napolitano then showed plaintiff his hands (“You see these hands?”) and looked at him “suggestively,” stating that although his hands look clean, “they get really dirty.” He then told plaintiff to visit his farm if he was ever in New Jersey or that he could visit him in his Manhattan apartment.

In its analysis, the court explained:

Fatal to plaintiff’s claim is the undisputed fact that Napolitano’s alleged conduct toward him is entirely unrelated to plaintiff’s employment with Fox, and plaintiff does not claim otherwise. Plaintiff’s willingness to withdraw his employment discrimination and retaliation claims against Napolitano underscores the fact that his claim against Napolitano is based solely on the one incident, which happened to occur in the workplace but otherwise has no relation to plaintiff’s work. Thus, absent an allegation that Napolitano had an agency or supervisory relationship with plaintiff, he may not be held liable for the alleged sexual harassment under the NYCHRL.

Moreover, the encounter between plaintiff and Napolitano was brief and trivial, similar to those at issue in Williams, wherein the Court dismissed a NYCHRL sexual harassment claim arising from an allegation that the plaintiff’s supervisor allegedly told her, after she had requested a place at work to take a shower, that “[she] can take a shower at my house.” (61 AD3d at 30; see also Kim, 120 AD3d at 36 [dismissing harassment claim under NYCHRL as reasonable person would consider offending conduct no more than “petty slights and trivial inconveniences”]).

Plaintiff’s assertion that that Napolitano “did more” than the defendant in Kaplan v New York City Dept. of Health and Mental Hygiene, 142 AD3d 1050, 1051 (2d Dept 2016), borders on the frivolous as the defendant in Kaplan was alleged to have engaged in an overtly sexual act in the plaintiff’s presence, whereas there was nothing overtly sexual about Napolitano’s conduct. Consequently, regardless of the discomfort that plaintiff allegedly felt as a result of his encounter with Napolitano, the alleged facts, viewed individually and collectively, do not constitute evidence that Napolitano was motivated by sexual desire.

Based on this, the court held that defendant Napolitano sustained his burden of demonstrating that plaintiff’s cause of action for sexual harassment was legally insufficient.

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