Eckhart v. Fox News Network LLC - Second Circuit Affirms Summary Judgment on NYCHRL Claims

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April 24, 2026 Get Citation Alerts Download PDF Add Note

Eckhart v. Fox News

Court of Appeals for the Second Circuit

• Citations: None known
• Docket Number: 25-1538

• Precedential Status: Non-Precedential

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (40.6K)

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Combined Opinion

25-1538
Eckhart v. Fox News

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND
IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

At a stated term of The United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 24th day of April, two thousand twenty-
six.

PRESENT:
SUSAN L. CARNEY,
BETH ROBINSON,
MYRNA PÉREZ,
Circuit Judges.

---

JENNIFER ECKHART,

Plaintiff-Appellant,

v. No. 25-1538

FOX NEWS NETWORK, LLC,

Defendant-Appellee,

ED HENRY, in his individual capacity and in his
professional capacity,
Defendant. *

---

FOR PLAINTIFF-APPELLANT: MICHAEL J. WILLEMIN (Jeanne M.
Christensen, Mélodie Han, on the
brief), Wigdor LLP, New York, NY.

FOR DEFENDANT-APPELLEE: RACHEL S. FISCHER (Keisha-Ann G.
Gray, Julia F. Hollreiser, on the brief),
Proskauer Rose LLP, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Abrams, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment entered on June 16, 2025, is

AFFIRMED.

Plaintiff Jennifer Eckhart challenges the district court’s grant of summary

judgment to defendant Fox News Network, LLC, with respect to her New York

City Human Rights Law (“NYCHRL”) and New York State Human Rights Law

(“NYSHRL”) sexual harassment claims. Eckhart brought this suit against both Fox

and a former Fox correspondent, Ed Henry, alleging that Henry sexually harassed

and raped her, and that Fox is liable for that conduct. We assume the parties’

• The Clerk’s office is respectfully directed to amend the caption as reflected above.

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familiarity with the underlying facts, procedural history, and arguments on

appeal, to which we refer only as necessary to explain our decision. 1

We review a district court’s grant of summary judgment without deference.

Qorrolli v. Metropolitan Dental Associates, 124 F.4th 115, 122 (2d Cir. 2024). Summary

judgment is appropriate only in cases where no genuine dispute of material fact

exists and the movant is entitled to judgment as a matter of law. Id. “In

determining whether there is a genuine dispute as to a material fact, we must

resolve all ambiguities and draw all inferences against the moving party.” Garcia

v. Hartford Police Department, 706 F.3d 120, 127 (2d Cir. 2013). 2

I. NYCHRL

The NYCHRL provides that an “employer shall be liable for an unlawful

discriminatory practice based upon the conduct of an employee” only where:

(1) The employee . . . exercised managerial or supervisory
responsibility; or

(2) The employer knew of the employee’s . . . discriminatory
conduct, and acquiesced in such conduct or failed to take immediate

1For purposes of this appeal, we view the evidence “in the light most favorable” to Eckhart, as
the party against whom summary judgment was granted. Bey v. City of New York, 999 F.3d 157,
164 (2d Cir. 2021). That does not mean this Court has made any determination as to what did or
did not transpire.

2In quotations from caselaw, this summary order omits all internal quotation marks, footnotes,
and citations, and accepts all alterations, unless otherwise noted.

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and appropriate corrective action; an employer shall be deemed to
have knowledge of an employee’s or agent’s discriminatory conduct
where that conduct was known by another employee or agent who
exercised managerial or supervisory responsibility; or

(3) The employer should have known of the
employee’s . . . discriminatory conduct and failed to exercise
reasonable diligence to prevent such discriminatory conduct.

N.Y.C. Admin. Code § 8-107(13)(b)(1)–(3). Eckhart argues that the district court

erred in granting summary judgment to Fox on each of these theories, so we

consider them in turn.

A. Managerial or Supervisory Responsibility

The district court did not err in declining to evaluate Eckhart’s summary

judgment argument that Fox was liable because Henry “exercised managerial or

supervisory responsibility.” N.Y.C. Admin. Code § 8-107(13)(b)(1); see Eckhart v.

Fox News Network, LLC (Eckhart II), No. 20-CV-5593, 2025 WL 786536, at *18

(S.D.N.Y. Mar. 12, 2025). At an earlier stage in the litigation, Fox moved to dismiss

Eckhart’s claim under each of the three theories of liability available under N.Y.C.

Admin. Code § 8-107(13)(b)(1)–(3). As to the “managerial or supervisory

responsibility” theory, Fox argued that it could not be held liable because Henry

did not supervise Eckhart. In opposition, Eckhart did not argue that Fox

misunderstood the meaning or scope of the NYCHRL; rather, she contended only

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that her complaint was “sufficient to state a claim that Henry exercised sufficient

supervisory authority over Eckhart.” Dist. Ct. Dkt. 128 at 21–22 (emphasis added).

The district court then dismissed Eckhart’s claims against Fox under this

theory. Eckhart v. Fox News Network, LLC (Eckhart I), No. 20-CV-5593, 2021 WL

4124616, at *18 (S.D.N.Y. Sept. 9, 2021), on reconsideration in part, No. 20-CV-5593,

2022 WL 4579121 (S.D.N.Y. Sept. 29, 2022). It made two important determinations.

First, the court decided as a matter of law that an employer may be liable under

the NYCHRL for harassment by a manager or supervisor if the individual

“exercised managerial or supervisory responsibility over the [complainant],” as the

parties apparently agreed. Id. (emphasis added). Second, it determined that

Eckhart’s pleadings showed that “Henry was not Eckhart’s manager or

supervisor.” Id. The court thus concluded that the “managerial or supervisory

responsibility” theory of liability was unavailable to Eckhart and that Fox could

be “liable for Henry’s conduct only if it knew or should have known about” the

alleged harassment. Id.; see also N.Y.C. Admin. Code § 8-107(13)(b)(1)–(3).

Eckhart never challenged this dismissal before the district court. She did

not move for reconsideration on the law or seek leave to amend her complaint to

allege additional facts in support of her supervisor-liability claim. Instead, three

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years later, in opposition to Fox’s motion for summary judgment, she argued for

the first time—in two paragraphs—that Fox could be liable under § 8-107(13)(b)(1)

of the NYCHRL if Henry exercised managerial or supervisory authority over

anyone.

The district court declined to consider this new theory of supervisory

liability raised by Eckhart in response to Fox’s summary judgment motion on the

ground that its prior order dismissing Eckhart’s claim already resolved her

supervisor-liability claim. Eckhart II, 2025 WL 786536, at *18. Implicit in that

decision, then, is a ruling that Eckhart had forfeited this argument by failing to

assert it, which we review for abuse of discretion. See Hamilton v. Atlas Turner, Inc.,

197 F.3d 58, 61 (2d Cir. 1999). The district court did not exceed its discretion in

declining to consider Eckhart’s new theory. See id.

In any event, Eckhart argues on appeal that the district court misunderstood

the NYCHRL, and that the law creates strict liability for employers based on

harassment by any employee with “managerial or supervisory responsibility”

over any other employee. Appellant’s Brief at 31–32. Because “our waiver and

forfeiture doctrine is entirely prudential,” Eckhart asks us to “exercise this

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discretion to consider [this] otherwise forfeited argument.” United States v. Gomez,

877 F.3d 76, 95 (2d Cir. 2017).

We decline to do so. The scope of supervisory liability under the NYCHRL

is a question of law, true. But before the parties completed discovery, Eckhart did

not argue that Fox was liable for Henry’s misconduct on the ground that he

exercised “managerial or supervisory responsibility” over Fox employees other

than Eckhart. This argument was also not addressed in the district court’s

summary judgment ruling. So, among other considerations, we cannot be

confident that the facts surrounding Henry’s authority over others at Fox were

fully developed in discovery and presented in the summary judgment record. We

thus decline to exercise our discretion to address Eckhart’s argument, otherwise

forfeited, that an employer is strictly liable under the NYCHRL for harassment by

any employee who exercises “managerial or supervisory responsibility,”

regardless of whether the employee exercises such authority over the complainant.

See id. (“We generally exercise this discretion to consider an otherwise forfeited

argument where necessary to avoid a manifest injustice or where the argument

presents a question of law and there is no need for additional fact-finding.” (emphasis

added)); Greenidge v. Allstate Insurance Co., 446 F.3d 356, 361 (2d Cir. 2006)

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(declining to reach merits of an argument raised for first time in opposition to

summary judgment).

And we decline to consider Eckhart’s alternative argument on appeal that

Henry had supervisory authority over her for purposes of the NYCHRL. She asks

us to review the dismissal on the basis of the summary judgment record even

though the district court previously assessed and rejected her claim on the basis of

her pleadings, and makes no argument as to why the district court’s dismissal on

the pleadings was erroneous. By failing to argue on appeal that the district court’s

dismissal on the pleadings was wrongly decided as a matter of law, Eckhart has

abandoned her challenge to that ruling and we need not address it here. See Gao

v. Barr, 968 F.3d 137, 144 n.7 (2d Cir. 2020).

Nor did the district court abuse its discretion in holding that the law of the

case doctrine barred Eckhart’s attempt to revive her dismissed supervisory-

liability argument. See Devilla v. Schriver, 245 F.3d 192, 198 (2d Cir. 2001) (“[W]e

review a district court’s application of the law of the case doctrine for abuse of

discretion only . . . .”). Eckhart did not move for reconsideration of the district

court’s rejection on the pleadings of her claims regarding supervisory liability, nor

did she argue “an intervening change of controlling law, the availability of new

8
evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin

Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)

(explaining that “where litigants have once battled for the court’s decision, they

should neither be required, nor without good reason permitted, to battle for it

again”).

B. “Knew” or “Should Have Known”

The district court granted summary judgment to Fox on the two remaining

bases for employer liability under the NYCHRL: that Fox knew about the conduct

and acquiesced to it, N.Y.C. Admin. Code § 8-107(13)(b)(2), and that Fox should

have known and failed to exercise reasonable diligence to prevent the conduct, id.

§ 8-107(13)(b)(3).

In her opposition to Fox’s motion for summary judgment, Eckhart argued

that Fox knew or should have known about Henry’s behavior towards her before

he allegedly raped her in February 2017. Dist. Ct. Dkt. 425 at 5 (“Fox News knew

that Mr. Henry was a significant risk and empowered him to rape Ms. Eckhart.”).

She did not argue that Fox knew or should have known about, and prevented, any

contact between Henry and her after that event. Eckhart concedes on appeal that

the import of Henry’s unanswered texts to her following the alleged rape “was not

9
argued in the parties’ summary judgment” briefing. Appellant’s Reply Brief at 22.

Accordingly, we limit our review to what Fox knew or should have known before

this alleged assault. See Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006)

(explaining that an appellate court generally will not consider an issue raised for

the first time on appeal where the “arguments were available to the parties below

and they proffer no reason for their failure to raise” them).

Eckhart has not shown that Fox knew of Henry’s conduct towards her and

failed to take immediate and appropriate corrective action. See N.Y.C. Admin.

Code § 8-107(13)(b)(2). Eckhart undisputedly never told anyone at Fox about any

of her sexual encounters with Henry while she was an employee. App’x 227. And

it is undisputed that Henry never told any Fox employees about their encounters

until he was interviewed after Eckhart lodged her sexual harassment complaint.

App’x 228. Fox did not learn about Henry’s alleged conduct toward Eckhart until

after Eckhart’s termination, when her counsel informed Fox of her allegations

regarding Henry, and, that very day, Fox hired outside counsel to investigate and

the outside counsel interviewed Henry. Less than a week later, outside counsel

reported to Fox that Eckhart and Henry had sexual contact at Fox Headquarters,

and Fox fired Henry the next day.

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Nor has Eckhart shown on this record that Fox “should have known” about

Henry’s harassing conduct towards her. See N.Y.C. Admin. Code § 8-107(13)(b)(3).

Though Fox later learned of Henry’s other extramarital affairs and workplace

conduct towards women, the record evidence shows that the only fact known to

Fox prior to the February 2017 rape was that Henry had a consensual extramarital

affair with a “stripper in Las Vegas.” App’x 192. Following that revelation, Fox

suspended Henry, took him off the air for several months, reduced his annual pay,

and removed him from the role of Chief White House Correspondent. Id. While

he was suspended, Henry went to a sexual rehabilitation therapy and treatment

program suggested by Fox.

We reject Eckhart’s argument that Fox must have known about the various

other instances of Henry’s improper sexual workplace conduct that later surfaced

because, as Eckhart asserts, it “is implausible that Fox News sent Henry to sex

addiction therapy on the basis of a single consensual affair.” Appellant’s Brief at

1. This argument rests on impermissible speculation rather than permissible

inferences. Davis v. Bombardier Transportation Holdings (USA) Inc., 794 F.3d 266, 269

n.5 (2d Cir. 2015) (“Mere speculation and conjecture is insufficient to preclude the

granting of summary judgment.”). And the record otherwise contains no non-

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hearsay evidence that, before February 2017, any Fox manager or supervisor was

privy to information about Henry’s other improper sexual activity. See Burlington

Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985)

(noting that a party cannot rely on inadmissible hearsay in opposing a motion for

summary judgment absent a showing that admissible evidence will be available

at trial).

II. NYSHRL

Under the NYSHRL, an “employer cannot be held liable for an employee’s

discriminatory act unless the employer became a party to it by encouraging,

condoning, or approving it.” State Division of Human Rights ex rel. Greene v. St.

Elizabeth’s Hospital, 66 N.Y.2d 684, 687 (1985). Condoning harassment requires a

“knowing, after-the-fact forgiveness or acceptance of an offense.” Id. Fox and

Eckhart agree that this standard controls. Appellant’s Brief at 49; Appellee’s Brief

at 57.

Eckhart’s NYSHRL claim fails because she has failed to adduce evidence

showing that Fox knew of Henry’s conduct while it was ongoing. Furthermore,

the evidence demonstrates that Fox acted once it learned of her allegations by

terminating Henry.

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---

For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

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