Employment: Woman alleges months-long smear campaign constitutes hostile work environment

Where a woman alleged a male executive went on a months-long, continuous smear campaign using vile, sex-based accusations that she was a slut, a whore and a person who had slept her way to the top, she plausibly alleged a hostile work environment claim.

Background

Christine Cox’s second amended complaint against her former employer (Red Hat Inc.) and a Red Hat employee (Bruce Marcey): (1) asserts a defamation claim against Marcey; (2) attempts to resurrect her defamation claims against Red Hat; (3) asserts a discrimination and hostile work environment claim against Red Hat pursuant to Title VII of the Civil Rights Act of 1964 and the Virginia Human Rights Act, or VHRA; (4) asserts a Title VII and VHRA retaliation claim against Red Act and (5) asserts claims of intentional infliction of emotional distress, or IIED, against both defendants.

Both defendants have filed motions to dismiss.

Defamation

Plaintiff alleges in December 2022, Marcey allegedly told others “Don’t work with [plaintiff] or talk to her as a Red Hat employee as I am getting her fired and she won’t be around long,” that she “slept [her] way to the top” and “[s]he slept with Greg Feldman which is why she wants TWS in the VA deal.” Because the content of the statements was alleged in the amended complaint, they relate back and are timely.

Marcey argues that “December 2022” is not specific enough. The court disagrees. However, plaintiff’s second amended complaint fails to state a defamation claim to the extent that it continues to be premised on unidentified “Partners/vendors.” And the statement “Don’t work with her or talk to her as a Red Hat employee as I am getting her fired and she won’t be around long,” concerns a possible future event and therefore is not provably false.

Further, plaintiff has not plausibly alleged facts supporting a respondeat superior theory of defamation. However, given plaintiff’s new allegation that Rick Miller, Red Hat’s Senior Director of Federal Civil Sales, when informed of Marcey’s statements, responded “Christine deserved it,” the statement “Christine deserved it” is tantamount to agreeing that Marcey could and should make his allegedly defamatory statements.

Statute of limitations

Plaintiff filed her charge on May 11, 2023. Thus, the applicable 300-day lookback extends back to July 14, 2022. To the extent the second amended complaint raises a discrimination claim based on the termination of plaintiff’s employment, plaintiff alleges that the decision was made in December 2022 and her last day was in February 2023 – both within the lookback period. Accordingly, this claim is timely.

And based on the limitations that plaintiff has proffered with respect to the alleged acts of retaliation, the four alleged retaliatory acts all occurred within the 300-day lookback period and are therefore timely. Finally, plaintiff has alleged a series of actions within the 300-day look back period which she asserts support her hostile work environment claims. Thus, the hostile work environment claim itself is timely, and the court may consider the out-of-time allegations of a hostile work environment to the extent that they “are adequately linked.”

Hostile work environment

Plaintiff has essentially alleged that Marcey – a Red Hat executive – went on a months-long, continuous smear campaign whereby he sought to undermine plaintiff’s position in the workplace by using vile, sex-based accusations that she was a slut, a whore and a person who had slept her way to the top, including by sleeping with specific individuals. Plaintiff also alleges that Marcey made threats to “off” her family and the family members of those with whom she was allegedly engaged in a sexual relationship. Moreover, plaintiff alleges that other executives at Red Hat adopted those allegations. This is sufficient to state a claim.

Discriminatory discharge

This claim fails because there are no facts showing plaintiff suffered the adverse employment action under circumstances giving rise to an inference of unlawful discrimination. Plaintiff does not allege that any other person was hired for her senior director position and as such there are no allegations to contradict her concession that her position was eliminated.

Retaliation

With the exception of the alleged failure to promote claim, each of plaintiff’s alleged material adverse actions came more than three months after her last alleged protected activity. This temporal gap is sufficient to break any alleged causal connection between these events.

Regarding the failure to promote claim, a plaintiff cannot establish a prima facie case where an employer cancels a vacancy and does not fill the position). Additionally, plaintiff has not established that the decision-maker with respect to the failure to promote claim had knowledge of her protected activities.

IIED

Conduct can be “offensive, unacceptable, and wrongful” but still not meet the threshold for outrageousness, because the “outrageous and intolerable prong is seldom met by plaintiffs under Virginia law.” The IIED claims against both defendants are dismissed.

Defendants’ motions to dismiss granted in part, denied in part.

Cox v. Red Hat Inc., Case No. 1:23-cv-766, March 21, 2025. EDVA at Alexandria (Alston). VLW 025-3-117. 42 pp.