(Editor’s Note: The following appears in Esports and the Law, a periodical produced by Hackney Publications.)
By Morgan Povinelli, GW Law, 2022
On March 3, 2022, the parents of a deceased employee at Activision Blizzard (AB) sued the company, only to drop the suit two months later.
As a way of background, Paul and Janet Moynihan filed a complaint against the video game publishing giant, Activision Blizzard, asserting three causes of action: wrongful death, survivor’s actions for work environment sexual harassment, and survivor’s action for failure to prevent harassment.[1] The complaint stems from daughter Kerri Moynihan’s (KM) death, which occurred on April 27, 2017, while at a work retreat. They filed with the Superior Court of California County of Los Angeles. About two months later, on May 6, 2022, the Moynihans voluntarily dismissed their lawsuit, with prejudice. They are therefore now barred from trying to bring these claims again against AB. The court entered dismissal, as requested, on May 10th, 2022. It is unclear why the parents of KM chose to dismiss their case against AB and no information has been made public about whether the parties reached a settlement agreement.
The legal issues of a toxic workplace environment publicized over the past couple of years played a role in the complaint. After KM’s death and prior to the filing of the complaint, AB was under investigation by both the California Department of Fair Employment & Housing (DFEH) and the United States Equal Employment Commission (EEOC). The about 2-year long DFEH investigation for discrimination against employees on the basis of sex and gender, and for its failure to take all reasonable steps to prevent unlawful discrimination, harassment, and realization, began in 2018. According to the Moynihans’ complaint, the DFEH found evidence that, among other things, AB and affiliated companies had discriminated against female employees and workers, that female employees and workers had been subject to sexual harassment, and that the company failed to take all reasonable steps to prevent unlawful discrimination, workplace harassment, or retaliation. The EEOC investigation of allegations of sexual harassment and retaliation by AB, which occurred from September 2018 to June 2021, found sexual harassment, pregnancy discrimination, and/or retaliation, and sexual harassment that was severe or pervasive to alter the conditions of employment.
As the Moynihan’s complaint alleges, KM began working for AB in 2011 as a staff accountant. By February 2016, she was promoted to finance manager. At the time of her death, she was allegedly in a sexual relationship with her male supervisor, Greg Restituito. The complaint contends that this relationship went against company policy banning sexual relationships with subordinates.
In April 2017, KM was on a work retreat at the Grand Californian, as was Restituito. While on the trip, KM died by suicide around 2:00 AM on April 27th. All indications surrounding her suicide were that it was the product of an uncontrollable impulse, according to the complaint. Her parents filed the complaint to recover damages from her death, as they asserted the “brutal workplace sexual harassment at ACTIVISION [] was a substantial factor in causing her death by suicide.” Specifically, the complaint includes these DFEH findings:
In a tragic example of the harassment that Defendants allowed to fester in their offices, a female employee committed suicide while on a company trip due to a sexual relationship that she had been having with her male supervisor . . . . Another employee confirmed that the deceased female employee may have been suffering from other sexual harassment at work prior to her death. Specifically, at a holiday party before her death, male co-workers passed around a picture of the deceased’s vagina.
The Dismissal
It is unclear whether their decision to have the case dismissed resulted from a settlement agreement or some other reason. Whether Activision Blizzard would have been held accountable for Kerri Moynihan’s death or not will forever remain unknown. But her death is a tragic example of just how far the harms of sexual harassment can extend.
[1] Paul Moynihan, et al. vs. Activision Publishing, Inc.; Case Number: 22STCV07890
