Fox News Gets Employment Discrimination Suit To Go With $1.6B Dominion Defamation Suit

Fox News Gets Employment Discrimination Suit To Go With $1.6B Dominion Defamation Suit
Mar 2023

Fox News Gets Employment Discrimination Suit To Go With $1.6B Dominion Defamation Suit
Fox News is having a banner day in multiple courts.

This afternoon it argued its motion for summary judgment in Dominion Voting Systems' $1.6 billion defamation suit before Delaware Superior Court Judge Eric Davis. That court already denied the network's motion to dismiss back in 2021, finding that "Fox possessed countervailing evidence of election fraud from the Department of Justice, election experts, and Dominion at the time" and "despite this evidence, Fox continued to publish its allegations against Dominion." That kicked off a year of discovery, leading to the avalanche of embarrassing disclosures, not just about Fox's knowledge that the election fraud claims it was broadcasting were nonsense, but, as Dominion alleges, that it continued to air them to placate viewers who preferred to consume propaganda rather than actual news.

It's highly unlikely that the court will grant summary judgment to either side, but every appearance and filing presents yet another opportunity for Dominion to dump more embarrassing discovery excerpts on the public docket. Yesterday we got yet more deposition testimony confirming the network's desperate panic over fear of losing marketshare to Newsmax and OAN, outlets which relentlessly flogged Trump's false election fraud claims in the aftermath of the 2020 election. Fox COO Joe Dorrego confirmed under oath that Fox executives were both dependent on MyPillow CEO Mike Lindell for ad revenue and aware of his propensity to "go off the rails" and make false election claims, even as they continued to put him on the air -- although Dorrego was at pains to downplay the connection between these two admissions.

Then last night Fox raced into New York state court seeking an injunction to prevent former producer Abby Grossman from disclosing communications with Fox's lawyers in the Dominion suit. That effort seems to have failed spectacularly, only drawing more attention to Grossberg's claims, and Fox hastily withdrew its request for relief just hours later. That lesson in the Streisand Effect can't be expunged however.

Even without Fox's attempt to gag her, Grossberg's filings, which were first flagged by the New York Times, would likely have garnered significant attention. In addition to an EEOC claim and a case in Delaware state court, Grossberg filed a federal complaint in New York alleging violations of both the federal equal pay law and multiple New York non-discrimination statutes.

Grossberg, who worked as producer for Maria Bartiromo and then as a booker for Tucker Carlson, describes a workplace rife with sexism and religious discrimination, replete with anecdotes that could have been lifted from an HR manual's DON'T DO THIS section. For instance:

As the year came to an end, Ms. Grossberg bought each of her team members a gift to thank them for their diligent work. In turn, Mr. Yaron bought a babka (a historically Jewish sweet bread) for the office. When Mr. McCaskill learned that there was babka in the office, he began to loudly and obnoxiously demand that the [Tucker Carlson Tonight] booking team have "the bread made by the Jews." Thereafter, anytime Mr. Yaron purchased his lunch from the Jewish bakery known as Breads Bakery, Mr. McCaskill loudly proclaimed to the TCT booking team that Mr. Yaron went to the "Jew bakery," and that he had gone "to see his people."

Grossberg alleges that commentary about women's bodies was constant, with discussions about which politician was more sexually desirable a regular refrain. No woman was safe, not even staff:

Mr. Wells and Mr. McCaskill often remarked that Lexi Ciccone, a TCT Booker who reported to Ms. Grossberg, should use her sex appeal to the TCT team's advantage, such as by "sleep[ing] with Elon Musk to get [an] interview" and that she could be his "next wife." Ms. Ciccone herself, likely feeling as if she needed to "fit in" and add commentary matching her misogynist work environment, would respond that men "masturbated" to her.

Within her first week of transitioning from Bartiromo's show to Carlson's, Grossberg was confronted with giant photos of Rep. Nancy Pelosi in a bathing suit and asked if her former boss was "fucking Kevin McCarthy." She claims that she was paid less than her male peers, denied promotion because her managers thought thought that Bartiromo required a male manger, retaliated against when she complained, and then inappropriately fired when the stress of Fox's hostile work environment caused her to become physically ill and clinically depressed.

All of which is bad enough, but Grossberg's claims about the network's sexist treatment of Bartiromo, as well as the way it prepped Grossberg herself to be deposed by Dominion, will probably be of most interest to the Dominion's lawyers. Because Grossberg claims that Bartiromo's show was systematically starved of staff as compared to her male counterparts, which led to some of the lapses in fact checking when Bartiromo had Rudy Giuliani and Sidney Powell on her show.

Furthermore, she says that Fox's lawyers implied that she should do her best to downplay this when under oath with Dominion's counsel. For instance, she writes: "Ms. Grossberg also understood and got the impression based on Fox News's legal team conduct that she could not reveal how she was unable to read and react to all of the email warnings Dominion sent to Fox News because she was simply stretched way too thin because of the lack of resources Fox News gave to SMFMB and had to make it seem like she was not performing an important part of her position."

This claim is somewhat undercut by Grossberg's own texts revealed in the Dominion docs, where Grossberg said things like, "To be honest, our audience doesn't want to hear about a peaceful transition." But Grossberg goes further than that, alleging that Fox's lawyers encouraged her to give misleading testimony in an effort to blame Bartiromo and deflect attention from its male hosts and executives.

She writes that she "left the deposition preparation sessions without knowing that by giving such false/misleading and evasive answers like the ones Fox's legal team reacted to positively to during the prep sessions, she not only opened herself up to civil and criminal liability for perjury, but was subtly shifting all responsibility for the alleged defamation against Dominion onto her shoulders, and by implication, those of her trusted female colleague, Ms. Bartiromo, rather than the mostly male higher ups at Fox News who endorsed the repeated coverage of the lies against the Dominion."

In support of this, Grossberg claims that her supervisor emailed the whole Tucker Carlson Show team "in recognition of 'Abby Day'" after she reported having "protected" Carlson in her deposition testimony.

All of which will no doubt be of interest to Dominion's lawyers. Also Fox's lawyers, but in a different way. In their now-withdrawn request for injunctive relief, Fox claimed that these disclosures violate its attorney-client privilege. It seems unlikely that Fox will now file a counterclaim to assert the privilege as to Grossberg's claims within the complaint, and anyway she's pretty far down the food chain to be Fox's agent for the purposes of attorney-client privilege. But if it did, it wouldn't be the dumbest legal choice the network ever made. We are, after all, talking about a company that's speeding full-steam ahead into a $1.6 billion defamation case with a plaintiff that's likely worth less than $150 million, an amount each side will probably burn through in legal fees by the time this exercise is complete.

So ... guess we should keep checking the docket for that counterclaim.

A Fox News spokesperson provided the following statement on the lawsuit:

"FOX News Media engaged an independent outside counsel to immediately investigate the concerns raised by Ms. Grossberg, which were made following a critical performance review. Her allegations in connection with the Dominion case are baseless. We will vigorously defend Fox against all of her claims and are confident we will prevail."

Grossberg v. Fox Corp [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.