Pennsylvania State University Christiansen v Omnicom Group Inc Business Law Question

Please respond to this issue.

Assume that you have been appointed to be the mediator in Christiansen v. Omnicom Group, Inc. (2017), which has been remanded by the Second Circuit Court of Appeals back down to the United States District Court for the Southern District of New York.

In his

complaint, Matthew Christiansen allegesLinks to an external site.

the following:

Christiansen, an openly gay man who is HIV positive, worked as an associate creative director and later creative director at DDB Worldwide Communications Group, Inc., [DDB] an international advertising agency and subsidiary of Omnicom Group, Inc. Christiansen’s complaint alleged that his direct supervisor engaged in a pattern of humiliating harassment targeting his effeminacy and sexual orientation. According to Christiansen, in the spring and summer of 2011, his supervisor drew multiple sexually suggestive and explicit drawings of Christiansen on an office whiteboard. The most graphic of the images depicted a naked, muscular Christiansen with an erect penis, holding a manual air pump and accompanied by a text bubble reading, “I’m so pumped for marriage equality.” . . .  Another depicted Christiansen in tights and a low cut shirt “prancing around.” . . . A third depicted Christiansen‘s torso on the body of “a four legged animal with a tail and penis, urinating and defecating.” . . . Later in 2011, Christiansen’s supervisor circulated at work and posted to Facebook a “Muscle Beach Party” poster that depicted various employees’ heads on the bodies of people in beach attire. . . . Christiansen’s head was attached to a female body clad in a bikini, lying on the ground with her legs upright in the air in a manner that one coworker thought depicted Christiansen as “a submissive sissy.” . . . Christiansen’s supervisor also made remarks about the connection between effeminacy, sexual orientation, and HIV status. The supervisor allegedly told other employees that Christiansen “was effeminate and gay so he must have AID[S],” . . . Additionally, in May 2013, in a meeting of about 20 people, the supervisor allegedly told everyone in the room that he felt sick and then said to Christiansen, “It feels like I have AIDS. Sorry, you know what that’s like.” . . . At that time, Christiansen kept private the fact that he was HIV positive. (Christiansen v. Omnicom, 2017)

By way of procedural background:

On October 19, 2014, Christiansen submitted a complaint to the Equal Employment Opportunity Commission (EEOC) detailing the harassment described above. After receiving a Notice of Right to Sue from the EEOC, Christiansen filed this lawsuit in the United States District Court for the Southern District of New York on May 4, 2015. Shortly thereafter, defendants moved to dismiss the complaint. In their motion to dismiss, defendants argued . . . that Christiansen’s claim under Title VII was a sexual orientation discrimination claim rather than a gender stereotyping claim and was thus not cognizable. . . . The district court agreed . . . and dismissed the claim. (Christiansen v. Omnicom, 2017)

On appeal, the Second Circuit reversed the lower court decision, ruling that, based on the allegations of the complaint, it was plausible that “Christiansen would prevail on his Title VII gender stereotyping claim” (Christiansen v. Omnicom, 2017). On that basis, the appellate court sent the case back down for further proceedings. In the meantime, as discussed in the Lesson 13 commentary, the United States Supreme Court has ruled that a discharge based on sexual orientation violates Title VII.

For purposes of this assignment, let’s make several completely hypothetical assumptions:

First, assume that Christiansen resigned from his position with DDB due to the alleged harassment and that his complaint seeks reinstatement, back pay, compensatory damages for emotional distress, punitive damages, attorneys fees, and court costs.

Second, assume that the federal district court judge asked Christiansen and DDB whether they would be amenable to trying mediation before resuming litigation and both sides agreed to participate in the mediation process. Christiansen and DDB also agreed to your appointment as the mediator.

Third, assume that Christiansen’s premediation summary (which, pursuant to the court’s ADR rules, was shared with you but not with DDB), states that reinstatement terms must include DDB’s guarantee that there will be no repeat of the offensive conduct. Assume that DDB’s premediation summary (which was shared with you but not Christiansen) indicates that DBB is open to reinstating Christiansen if doing so makes economic sense in the context of settling the case.

In light of Christiansen’s allegations and our additional assumptions, explain in detail how you would proceed with this mediation. Your discussion should address the following:

Does this case appear to be susceptible to a successful mediation? What factors suggest “yes” and which say “no”? Describe them in detail.

What do you foresee as the thorniest legal, factual, and practical issues standing in the way of a settlement? Describe in detail how you would try to deal with each of them.

What is your role as the mediator, and how you would try to help the parties to resolve this case? Describe in detail the approach and process that you would use.

What do you think might be the terms of a potential settlement? Describe them in detail.

References

Christiansen v. Omnicom Group, Inc., Case No. 16748 (2nd Cir. March 27, 2017). Warning Concerning Copyright Restrictions
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This material has been reproduced from the following source:
Twomey, Rosemarie, F. Alternative Dispute Resolution: Mediation. Employment
Law: Going beyond Compliance to engagement and empowerment. Boston.
McGraw-Hill. 2010. 9780073026978. pp. 68-81.
Date prepared: 04/22/2010
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