observations 2/22

UPDATE:

Amar Ramasar's attorney filed a Motion to Dismiss at 5pm this afternoon.

"In addition, through the use of loaded phrases recklessly tossed about in the Complaint, Waterbury has attempted to create the false impression that she was physically, sexually assaulted or beaten – or worse. But the Complaint does not allege any fact showing that anything like that happened to Waterbury, or that Ramasar condoned the abuse of any woman.

Given the Complaint’s fixation on defendant NYCB, the Court could be forgiven if it formed the mistaken impression that Waterbury was a dancer with NYCB. But Waterbury had and has no association with NYCB whatsoever. Accordingly, the Complaint’s multiple allegations related to “female NYCB corps members” have absolutely nothing to do with Waterbury."

and this:

"Finlay is an adult who acted on his own. Ramasar did not control him. And no special relationship existed between Ramasar and Waterbury pursuant to which he was obligated to protect her from Finlay's actions."

[end of update]

At noon today filings on behalf of Chase Finlay were added to the Waterbury documents. They seem less straight forward than the arguments by NYCB, but definitely make one think more complexly about the complaint.

On the assault charge: "The plaintiff is alleging assault by trickery or chicanery (e.g., had she known she was being photographed she would have known she was being assaulted) and this assault by deception theory fails as a matter of law." Ditto for the charge of battery by deception. The answer also says that Waterbury's claims of battery must fail against any of the other defendants also.

Another interesting point is that most of Finlay's photographs seem to have pre-dated NYC's 2017 law which the plaintiff is claiming was violated. The answer asserts that the plaintiff failed to claim any misuse of her images for trade, advertising, monetary or publicity purposes.

And this: "Throughout the amended complaint are phrases and paragraphs that are neither probative nor relevant. They are designed only to prejudice and politically inflame an environment in which the Plaintiff is trying to exploit the so-called "Me Too" movement." The Answer goes on to request that specific language be stricken from the complaint.

And submitted as an exhibit is Annie Leibowitz's photograph of John Lennon and Yoko Ono from 1980.

onward...

Comments

[NYer]

They also reference/allude to exactly how Waterbury came into possession of the material. They mention a few times that it was ill gotten. They also back up the Longhitano motion about Waterbury being a third party to text messages and imply that she has no capacity both to sue and hold them to negligence because she's an uninvolved party.

They did have a two distinct sloppy errors where they called Catazaro a former donor in two different documents and they described Longhitano as Junior Board Member which he stated wasn't true AND NYCB's motion confirmed hi statement. Obviously these aren't major things that would hinder the motion, but they should've been caught.

[Dreamer]

In today’s WSJ article, Waterbury was quoted as saying the following:
“And you’re telling me that it happened off-hours, so you literally do not care about me, not even as a student or one of your employees, but as a person?” she says of NYCB.

Why does she insists on misrepresenting her relationship to NYCB? Was this interview conducted a long time ago when Waterbury and her attorney weren’t expecting the defendants to file a “Motion to dismiss” in which her inaccuracies would be uncovered?

[Haglund]

That continued misrepresentation is very odd to see, isn't it? I wonder if it's pathological.

[BryanP]

Hi Haglund, I think your link to Chase Finlay's filing is actually pointing to NYCB's response. You could just link to the entire list of documents in the case: https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=rPLVUnskYCM89NLHno7z4g==&display=all&courtType=New%20York%20County%20Supreme%20Court&resultsPageNum=1

[Haglund]

Thanks much.

[Solor]

Let's assume that Waterbury's case is tossed out and so there is no liability on the part of NYCB or any of the three dancers. The incident will still resonate because of the texts/e-mails, regardless of whether or not she had the right to obtain them and make them public (assuming they are real, of course). NYCB has the right to set moral standards (especially because it has to be sensitive to its audiences, which are under-represented by the kind of men who find those texts to be just "locker room talk" [to quote a defense from the 2016 campaign]). Do parents really want to bring their young daughters to see male dancers who conduct themselves that way? The legacy of this whole thing will be more attention paid to the behavior of both staff and dancers, which is not a bad thing.

[Haglund]

Solor, if we're going to insist on factoring in stolen private emails and texts into the decision of whether or not individuals should be allowed to retain their employment, shouldn't we look at ALL private communications from EVERYONE involved in the organization? Shouldn't NYCB sift through everyone's private communications to see what could be stolen, aired, and used to embarrass them?

As to the question, "Do parents really want to bring their young daughters to see male dancers who conduct themselves that way?" That is the same question that came up in the middle of the last century when people who were homophobic were trying to "protect" their children.

I point again to changing standards in culture and the fact that "entertainment" for the general public these days celebrates violent, mysogonistic messages that encourage young people who have not yet acquired fully developed consciences to simply go out and blast someone's head off or rape them. This is commercial culture and entertainment that is sending the message to these kids. NYCB broadcasts it in its own house as coolness. Is it okay to do that but not okay for an employee to put it in a private email as fantasy or quote disgusting, violent lyrics or text from commercially available entertainment?

If NYCB wants to apply some set of moral standards to employees' private communications, then they'd better look at what some of the dancers have said about David Koch. They'd better look at all of Bouder's communications on a myriad of topics to see where potential embarrassment lies should they become public.

[Solor]

I certainly don't advocate going through anyone's private correspondence. However, once it's out there, you can't ignore its effects. And how can you compare homophobia a century ago to these kinds of communications? Are you really saying that at some point in the future, character displayed in these emails/texts will be as accepted as homosexuality is today? That would really be sad. I think an audience is smart enough to separate out what they see on stage from the character of the performers. I have no problem with what anyone says or fantasizes in private - but once it becomes public, it's a different issue. And this is not about laws or lawsuits - it's about "employment at will" or contracts that have morals clauses. Like it or not, the three men revealed things about themselves that might offend enough of an audience that it would be detrimental to NYCB to keep them on. Criticizing David Koch is not the same. What if private texts had been uncovered that said "can you believe they hired that n----r" or "here are too many g-d Jews on the Board"? Would the company have the right to get rid of them?

[Haglund]

Solor, apologies if I made you think that I was suggesting that the current texts were directly related to or would correlate with the homophobia of the last century. Not my intent all. I was trying to point out a cultural adaptation.

Whether the NYCB could dump an employee for anything said in a private communication would probably depend on the specificity of their moral standards policies. One that simply said anything that embarrasses the company can get you fired would probably be overly broad. One that specified any critical comment of a colleague would probably be overly broad. So, NYCB needs to pin down what it thinks can or cannot be said by its employees in their private emails, private texts, private conversations, in their private lives. If the firing offense is that the employee cannot be reckless and allow his private communication to become public, that's a different offense. If the firing offense is that the employee's private communications were stolen and made public, there again is a different circumstance.

NYCB may have tried to craft an overly broad morals policy that they effectively could substitute for employment at will. I would hope that a judge or arbitrator would see through something like that. I don't know because I don't know what their morals policy is.

In my view, Bouder has embarrassed the company by fingering Sterling Hyltin and in doing so suggesting that Hyltin didn't deserve to dance opening night. The NYT has assisted her by publishing false information about ballerinas owning a role, owning opening night performances and so forth. So shouldn't Bouder's baseless and intentionally widely publicized attack against Hyltin be cause for termination?

[Shawn]

Solor, you say you have no problem with anyone's private conversation. That's good to hear. A conversation is essentially thinking out loud. To punish anyone for a mere conversation is to punish a thought crime.

But you also conclude that you're glad about these punishments for thought crimes by predicting they'll cause an increased focus on "behavior." That's a leap too far.

A private conversation would be talking to a friend about whether you should complain to the press about not being cast in a starring role on opening night. What should happen to someone who has that kind of a conversation, whether it's made public or not? Absolutely nothing.

But what about a behavior? to use your word. That's actually running to the press to be quoted in a hit piece about a choreographer and one's colleagues. See the difference?

In the former case, we hack into your PC and punish you for the post that never came to fruition, that post you edited or deleted instead of the one you eventually decided to publish here. The deleted post was just thoughts, and indeed may have included thoughts, upon contemplation, directly contrary to what you actually think and chose to express.

In a free society, the former, the thoughts, are sacrosanct. You can't pick and choose otherwise because you agree with the Gestapo here but not there.

The rest of your defense of the firings is just euphemistic gloss on "money talks." Yes indeed, it talks, and often with great stupidity. For example, it might say to make a completely unqualified dancer the star of one's company because of a social agenda.

Also, consider this. Someone steals and publicizes a private text transcript between ballerinas mocking male donors. Perhaps they posit, say, a positive correlation between flaccidity and wealth. Would this even register on the social outrage meter? No, because it is misandry rather than misogyny. Today's moral panic clearly does not define morality. And should the ballerinas be punished or censured to any degree for their thought crimes? Of course not.

[Solor]

Shawn: unfortunately, people can be fired all the time from most jobs for any reason at all as long as it's not discriminatory. NYCB probably has contractual restrictions on this. No oen is stopping anyone from thinking or saying anything they want - but NYCB is not the government, which cannot punish you for speech or ideas. If you were working for a corporation and were overheard making sexually derogatory remarks about someone (another worker or not), you might be terminated - it would be a reflection of the work environment the company wants to maintain. It also might fall under sexual harrassment - but even if it didn't, if your employment was "at-will," you could be gone. NYCB might not want these guys around because their private conduct reflects poorly on the company. That may be a matter for arbitration or litigation. And they could probably fire Bouder for complaining to the press, especially if she is required to avoid discussing matters like that in public. But I doubt NYCB thinks audiences will be as concerned about her complaining to the press as they would be about the content of the men's emails/texts. We don't know that Waterbury had no right to look at them (that's a matter for her lawsuit). But if they're legitimate, they're out there. We're not talking about illegally-obtained evidence in a criminal matter, which could be excluded. This is about what rights NYCB has - probably contractually - to deal with the effect this behavior has on their image. Of course there is a degree of subjectivity - your ballerina example may not have the perceived impact on the audience that the 3 men's communications do. If we strip away all the procedural and litigation issues, what remains is NYCB having to deal with three dancers whose exposed conduct might be enough of a problem for them to want to separate them from the company. That's the only thing I'm talking about - not Waterbury's claim, not Bouder's adolescent pouting, not the way the papers might be reporting it. Simple - if the emails are real, what effect do they have on NYCB and what action may the company take?

[Shawn]

Yes, NYCB has discretion as to hiring/firing, which is likely limited by contract. We all agree on that much. The question then becomes how they should exercise that discretion.

Earlier, you seemed to take the position that the firings of not just Finlay but also Ramasar and Catazaro were righteous exercises of that discretion because some kind of deterrent would be created, and because it would be good PR.

I tried to explain above why it is not righteous, but instead deeply immoral and dangerous to punish thought crimes like those committed by Ramasar and Catazaro. It is also incredibly difficult to deter employees' off-site, private conduct, for rather obvious reasons.

As for the PR question, morality isn't determined by the mob. In the current moral panic around sex and identity, the most severe penalties are demanded at even the hint of the slightest infractions (case in point, here). Due process, proportionality, redemption, the burden of proof, and the passage of time itself have repeatedly been cast aside. Indeed, the only way to explain the mob's indifference to these precepts is as a form of instrumental justice: Any man is a suitable culprit for the real and imagined sins of his brethren.

Here's how silly this case is. Finlay brags to his friends about having sex with a "12+." They cheer him on. Another hypo, a ballerina brags to her friends about a shopping spree financed by a billionaire. They cheer her on. In the former case, the woman is a "sex object," and in the latter the man is a "success object." Neither relationship seems to be founded on mutual respect and understanding, let alone love. Is any of this worthy of moral outrage, let alone harsh retribution?

NYCB may well have had a problem with bad publicity here, but it also had an opportunity to do the right thing and hold itself above the fray. In doing so, it could also have resisted the same forces that are undermining both the arts and sciences with their "diversity" agenda.

[Solor]

A noble thought, certainly. But I doubt NYCB is ready to answer potential complaints from audience members and donors by saying "We stand by the right not to judge others based on their thoughts or conversations, especially if they're private." I imagine they would be applauded by many. But what if it costs them lots of revenue? I don't disagree that there are many over-reactions today to various kinds of offensive behavior, but NYCB is essentially running a business. And I don't tie their response to the overall diversification moves that are taking hold in various performing arts. This situation really falls under the broad umbrella of "Me Too," and there is certainly room to argue about what kind of responses are fair and appropriate. We can condemn NYCB for taking the easy way out, but they're entitled to do it, subject to contractual limitations.