Time Inc.’s former Europe editor can’t pursue her sex and age bias and job retaliation claims in U.S. federal court.
Catherine Mayer, who joined Time Magazine Europe Ltd. in 2004 and rose to a position in charge of all staff and budgets and supervising the European magazine’s editions, must bring her claims before a U.K. tribunal under U.K. law, the U.S. District Court for the Southern District of New York said April 9. That Mayer may be too late to sue in the U.K. under that country’s Equality Act and Employment Rights Act is unfortunate, but her own fault, Judge Denise Cote said.
It was Mayer who chose to sue in New York rather than the U.K even though she lives there, worked there for TMEL, and that’s where the other central witness in her case resides, the court said. Mayer also would be responsible for any untimeliness in the U.K. because she delayed in starting the administrative process for pursuing employment discrimination claims required under U.S. law, it said.
The April 9 decision is a reminder that a worker’s choice of where to sue an employer for alleged job bias generally is owed considerable deference and is rarely disturbed, but that a court may still order a worker to sue elsewhere if the chosen forum is too inconvenient for the employer, key witnesses, or the court.
The ruling also may provide some guideposts for other U.S. citizens working abroad on where to sue, although Mayer’s lead attorney told Bloomberg Law that Cote’s decision requiring Mayer to pursue her bias allegations overseas goes against the grain, Ann McAllister Olivarius, Mayer’s attorney, said.
Olivarius said she’s had many cases involving work scenarios similar to Mayer’s in the past and the courts have always kept the case in New York. Mayer’s lawsuit “is a quintessential New York case,” she said April 10. Olivarius is with McAllister Olivarius in Saratoga Springs, N.Y.
The “bad acts” were committed by Time executives in New York and were only effectuated and enforced in the U.K., the lawsuit claimed.The primary “bad actor”-Matt McAllester, who replaced Mayer and then harassed her based on her sex and age-lived in New York when Mayer filed her lawsuit, Olivarius said. Time itself is popularly associated with New York City and Mayer is a dual U.S.-U.K. citizen “who is in and out of New York with great frequency,” the lawyer said.
“The established facts are different from what Judge Cote recalled,” Olivarius said. Mayer timely filed her administrative charge with the Equal Employment Opportunity Commission, starting the U.S. process for suing for job discrimination, she said. Olivarius said she and her client are planning their next steps in the case.
“We appreciate the court’s thoughtful review of this matter and are pleased with the decision to dismiss the plaintiff’s claims,” Lisa M. Griffith, one of Time’s attorneys, told Bloomberg Law in an April 10 email. Griffith is with Littler Mendelson P.C. in Melville, N.Y.
Forum Choice Subject to ‘Sliding Scale’
Mayer’s choice of a New York forum for her case was entitled to less deference than a plaintiff’s choice of where to sue typically enjoys, Cote said. The former editor’s decision to sue in the U.S. appeared to be motivated by an expectation that a U.S. jury or court might award her more money she would get suing in the U.K.-what the law refers to as “forum shopping,” the judge said. A plaintiff’s choice of where to sue is judged on a “sliding scale” based on the degree of convenience the choice truly reflects, Cote said.
That Mayer resides in London, her claims arise out of work she performed in London for a U.K. employer, she was hired and fired there, and that her claims are largely based “on her relationship with a U.K. colleague” would all support that conclusion, the judge said. That shows a U.S. forum isn’t convenient for her former employer or Mayer, Cote said.
The U.K. also provides an adequate forum for Mayer to pursue her allegations, the court said. That’s so even though her time to assert claims under the U.K.’s Equality Act and Employment Rights Act technically has run out. Both of those laws grant a U.K. tribunal discretion to allow otherwise late claims, Cote said.
The country’s “robust” employment and gender discrimination laws also show that U.K. has “a strong public interest” in hearing Mayer’s case, Cote said. Most of the relevant witnesses and other evidence are located in the U.K. or may be easily obtained in the U.K., the judge said, conditionally granting the company’s motion to dismiss subject to the publisher consenting to be sued by Mayer in the U.K.
Mayer to Look First to U.K.
Mayer, in her July 2017 lawsuit, alleges that she was told by Time’s managing editor when she was promoted to Europe editor in 2012 that she could recruit two new senior editors to help her carry out her duties. But the publisher engaged in sex- and age-based discrimination when it subsequently reneged on that promise and hired only McAllester to fill one of those openings without consulting her.
McAllester was hired in June 2012 and by that August he had been reassigned all of her editing duties, Mayer alleges. She also was told the Europe editor position had been eliminated, but McAllester was given that title in September 2012, she says.
McAllester subjected her to a hostile work environment after becoming her boss, she alleges. He demanded to know where she was 24/7, required her to produce a daily story for Time.com-sometimes on topics outside her areas of expertise-without regard for her other commitments, gave her contradictory job instructions, and humiliated her verbally, she says.
Olivarius told Bloomberg Law that Mayer’s legal team would look first to the U.K. legal system to see if she can get the time to sue under U.K extended so she can bring her claims there. If not, then it’s back to U.S. court to ask Cote to reconsider her decision. They would appeal to the U.S. Court of Appeals for the Second Circuit if Cote won’t revisit and change her ruling, Olivarius said.
Stephen G. Grygiel of Silverman Thompson Slutkin White LLC in Baltimore and Frederic C. Weiss in New York also represent Mayer. Daniel S. Gomez-Sanchez in Melville and Jean L. Schmidt in New York, both of Littler Mendelson, also represent Time.
The case is Mayer v. TIME, Inc. , 2018 BL 125035, S.D.N.Y., No. 1:17-cv-05613, dismissal conditionally granted 4/9/18.