United States District Court, District of Columbia
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
in Part and Denying in Part Defendants' Motion for
Martin Dougherty brings this suit against Defendant Cable
News Network (“CNN”) for multiple violations of
the D.C. Human Rights Act (“DCHRA”), D.C. Code
§§ 2-1401.01 to -1404.04, interference with and
retaliation for exercising his rights under the Family and
Medical Leave Act (“FMLA”), 29 U.S.C.
§§ 2601-54, and the D.C. Family and Medical Leave
Act (“DC FMLA”), D.C. Code §§
32-501-17, as well as breach of contract and violation of the
D.C. Wage Payment and Wage Collection Law, D.C. Code §
32-1301-12. Dougherty, a photojournalist employed by CNN
between 1998 and 2016, alleges that the company refused to
give him medical leave or to otherwise accommodate him after
he suffered a knee injury in December 2015, and instead
unlawfully terminated him and replaced his position.
now moved for summary judgment on all claims. The Court first
dismisses Dougherty's breach of contract and wage claims,
which he has voluntarily withdrawn. Because CNN has not shown
that Dougherty was unable to perform the essential functions
of the photojournalist position, and because there remains a
genuine issue of material fact as to whether CNN's
asserted legitimate, non-discriminatory reason for his
termination was pretextual, the Court denies the motion for
summary judgment as to Dougherty's DCHRA claims. And
finally, finding that Dougherty was not eligible for either
FMLA or DC FMLA leave at any point between January 1, 2016
and March 17, 2016, the Court grants CNN's motion for
summary judgment as to Dougherty's FMLA and DC FMLA
interference and retaliation claims. The Court accordingly
grants in part and denies in part CNN's motion for
summary judgment. Having granted summary judgment on all
federal claims, the Court directs the parties to provide
supplemental briefing on the issue of whether it retains
jurisdiction to adjudicate Dougherty's state law claims.
The Photojournalist Position at CNN
photojournalist at CNN “is a cameraman who is
responsible for gathering news and shooting video of the
news.” Def.'s Statement of Material Facts
(“SMF”) ¶ 5, ECF No. 28; see also
CNN Photojournalist Job Posting Description, Pl.'s
Opp'n Mot. Summ. J. Ex. 4, ECF No. 36-5 (“CNN
Photojournalists are responsible for recording images to
illustrate CNN news events and stories”). Unlike CNN
cameramen, who acquire video “for a multitude of
different things, ” such as “commercials,
production houses, . . . [or] television shows, ”
photojournalists have a “narrow focus” on
gathering video for news production. Bena Dep. 9:4-11,
Pl.'s Opp'n Mot. Summ. J. Ex. 3, ECF No.
36-4. Because of staffing needs,
photojournalists are not permanently assigned. See
Courtney Dep. 96:9-17, Def.'s Mot. Summ. J. Ex. D, ECF
No. 28-4. Instead, CNN photojournalists typically receive
their work assignments for the next day every day between
5:00 PM and 7:00 PM. Schantz Dep. 152:9-19, Def.'s Mot.
Summ. J. Ex. C, ECF No. 28-3.
assignments in the Washington, D.C. area include several
“stand-up locations, ” where photojournalists are
expected to shoot standing subjects for extended periods of
time. See Courtney Dep. 95:2-9, Def.'s Ex.
Some of these stand-up locations include a stationary live
camera in the Russell Rotunda of Congress whenever it is in
session, Janney Dep. 33:1-3, Pl.'s Opp'n Mot. Summ.
J. Ex. 12, ECF No. 34-13, a stationary live camera on the
house side of the Capitol building, id. at 33:10-12,
Pl.'s Ex. 12, and a stationary live camera on the north
lawn of the White House whenever the President is in
Washington, id. at 33:6-8, Pl.'s Ex. 12. Other
stand-up locations sporadically may involve shots at the
State Department or Pentagon. See Id. at 33:17-20,
Pl.'s Ex. 12. However, because photojournalists are first
and foremost expected to contribute to reporting on breaking
news, they may be called to relocate from stand-up locations
and to respond to developing situations as they arise.
See, e.g., Schantz Dep. 56:6-20, Def.'s Ex. C.
Photojournalists filming on the north lawn of the White
House, for instance, are “responsible for any security
incidents that happen.” Id. at 100:19-20,
Def.'s Ex. C. Similarly, while the Russell Rotunda
assignment is “a relatively low impact day, ”
Janney Dep. 47:18, Pl.'s Ex. 12, photojournalists may be
called to quickly leave the position to respond to breaking
news, see Id. at 49:9-17, Pl.'s Ex. 12. And
because a journalist must do “whatever it takes to
gather news, ” Dougherty Dep. 86:1-2, Def.'s Mot.
Summ. J. Ex. B, ECF No. 28-2, relocating may involve walking,
running, or going up or down stairs to get to a new location.
photojournalist with CNN may receive a number of other
assignments. At times, photojournalists may be able to work
at desk positions on the assignment desk. See Janney
Dep. 114:7-21, Def.'s Mot. Summ. J. Ex. G, ECF No. 28-7.
However, the assignment is only on an ad-hoc basis, as the
position is worked full-time by employees who are not
photojournalists. See Id. Photojournalists may
otherwise be assigned to a variety of news stories such as
travelling with officials, covering local stories, or
reacting to any type of breaking news. Kinney Dep.
46:13-47:14, Pl.'s Opp'n Mot. Summ. J. Ex. 6, ECF No.
36-7. “There is literally an infinite number of
assignments that a CNN photojournalist could find themselves
covering.” Id. at 47:20-22, Pl.'s Ex. 6.
Any such assignment may be quite physical, potentially
involving not just standing, walking, and going up and down
stairs-including when responding to breaking news at the
Capitol building or White House, see Courtney Dep.
96:18-97:2, Def.'s Ex. D-but also “pushing heavy
loads, . . . crawling, . . . standing in standing water, in a
hurricane, navigating debris fields in tornado or hurricane
damaged, very austere and hostile environments, ”
id. at 50:22-51:4, Def.'s Ex. D.
Dougherty's Employment at CNN Prior to December
is a 56-year old photojournalist who joined CNN in 1998.
Dougherty Aff. ¶¶ 1-2, Pl.'s Opp'n Mot.
Dismiss Ex. 48, ECF No. 36-49. During the course of his
almost twenty-year career at the network, Dougherty was
injured on a number of occasions, resulting in multiple
surgeries. Dougherty had two knee surgeries in 2008,
following which he was able to return to work on lighter duty
in order to allow him to slowly get back to full working
condition. Id. ¶ 7. In 2010, Dougherty had
right foot surgery, after which he was again
“reintegrated . . . depending on [his] physical
limitations” by CNN. Id. ¶ 8. However,
after shoulder and neck injuries in 2012 and 2013, Dougherty
contends that CNN was less understanding, refusing to
accommodate work restrictions or to fully cover his
disability and medical costs. Id. ¶¶ 9-10.
December 2014, Dougherty injured his right shoulder again.
Id. ¶ 11. Dougherty took medical leave on March
4, 2015 to undergo rotator cuff surgery. Id.;
Ul-Haque Aff. ¶ 4, Def.'s Mot. Summ. J. Ex. H, ECF
No. 28-8. While Dougherty was on leave for the surgery, CNN
sent him multiple letters informing him that his leave
qualified under the FMLA and that the FMLA leave would be
exhausted on May 31, 2015. Ul-Haque Aff. ¶ 5; 2015 FMLA
Leave Eligibility Letters, Ul-Haque Aff. Ex. 1. Dougherty
claims that he never received the letters. Dougherty Aff.
¶ 21. Dougherty also claims that his supervisor at the
time, Doug Schantz, told him that he could only return to
work once he was cleared for “full duty.”
Id. ¶ 11. Dougherty returned to work at some
point between the end of November and the beginning of
December. Compare Dougherty Aff. ¶ 11 (claiming
that Dougherty returned on December 3rd or 7th) with
Ul-Haque Aff. ¶ 4 (noting that Dougherty was on leave
between March 4, 2015 and November 23, 2015).
doctor, Jonas Rudzki, prescribed a list of equipment that
would help alleviate future strain on Dougherty's
shoulder, which Dougherty then provided to CNN. Dougherty
Aff. ¶ 11; Nov. 18, 2015 Prescription, Pl.'s
Opp'n Mot. Summ. J. Ex. 35, ECF No. 36-36. Rudzki noted
in his deposition that when trying to determine what
accommodations are reasonable for a patient, he listens to
the patient's proposed accommodation and determines for
himself whether such accommodation is reasonable. Rudzki Dep.
22:3-24:3, Pl.'s Mot. Summ. J. Ex. 43, ECF No. 36-44. In
this case, the prescription included a recommendation for CNN
to provide Dougherty with a monopod for his camera, an
EasyRig camera support system-which would allow Dougherty to
transfer the weight of the video camera from his shoulder to
his hips, see Jenkins Dep. 66:3-12, 88:3-20,
Pl.'s Opp'n Mot. Summ. J. Ex. 5, ECF No. 36-6;
Dougherty Dep. 202:4-8, Def.'s Ex. B-and a quick release
plate, Nov. 18, 2015 Prescription. According to Dougherty,
CNN never responded to the request. Dougherty Aff. ¶ 11.
Dougherty's December 2015 Injury and Termination from
December 31, 2015, Dougerty injured himself on the job again.
Dougherty Aff. ¶ 14. As Dougherty was stepping out of
his CNN-provided vehicle after a shoot, his foot missed the
car's running board and he landed on his left leg,
dislocating his knee. Id. On January 5, 2016, Rudzki
evaluated Dougherty and determined that he was totally
incapacitated. Id. ¶ 16. Rudzki evaluated
Dougherty again on January 11, determining that he would be
fully incapacitated for eight weeks, with the injury to be
re-assessed in six to eight weeks. Id. ¶ 17.
Dougherty then informed Schantz and Oliver Janney, CNN's
senior field production supervisor, of the injury.
Id. Between January and February 2016, CNN sent
multiple letters to Dougherty informing him that he had
exhausted his FMLA leave. Ul-Haque Aff. ¶ 10. Dougherty
represents that he did not receive those letters. Dougherty
Aff. ¶ 21. On February 4, 2016, after determining that
Dougherty had been entitled to DC FMLA at the time of his
March 2015 leave for shoulder surgery, CNN elected to
retroactively apply his DC FMLA leave to March 2015.
See February 4, 2016 CNN HR E-Mail, Pl.'s
Opp'n Mot. Summ. J. Ex. 25, ECF No. 36-26. CNN claims to
have sent Dougherty an updated eligibility letter as a
result, see Ul-Haque Aff. ¶ 10; 2016 FMLA
Eligibility Letters, Ul-Haque Aff. Ex. 2, which Dougherty
also claims not to have received, Dougherty Aff. ¶ 21.
February 5, 2016, CNN determined that it would backfill
Dougherty's position instead of waiting for him to return
from leave. See Feb. 5, 2016 CNN HR E-Mail,
Pl.'s Opp'n Mot. Summ. J. Ex. 26, ECF No. 36-27. A
job posting was prepared on February 8, see Feb. 8,
2016 CNN HR E-Mail, Pl.'s Mot. Summ. J. Ex. 27, ECF No.
36-28, and on February 10, 2016, CNN sent Dougherty a letter
formally informing him that the company would take steps to
fill his position and was unable to guarantee that any
position would be available for him after he returned from
leave, see Feb. 10, 2016 Letter from CNN to Martin
Dougherty, Pl.'s Opp'n Mot. Summ. J. Ex. 31, ECF No.
36-32. The letter indicated that Dougherty's position
would have to be filled “[i]n order to meet pressing
business and operational needs moving forward.”
Id. Separately, CNN HR prepared talking points to
give CNN staff and Dougherty regarding his termination.
See Feb. 10, 2016 CNN HR E-Mail, Pl.'s Opp'n
Mot. Summ. J. Ex. 29, ECF No. 36-30. The talking points
mentioned that Dougherty's replacement was due to the
particularly high demands of the 2016 political season, with
a “business justification” portion noting that
CNN “plan[ned] to up-staff with temporary
photojournalists in order to alleviate the strain of
political coverage.” Id.
Dougherty received CNN's February 10, 2016 letter, he
claims that he reached out to both Schantz and his other
supervisor at the time, Jeffrey Kinney. Dougherty Aff.
¶¶ 22-23. According to Dougherty, Schantz informed
him that he could not return to work unless he had no
restrictions and was “100% healed.” Id.
¶ 23. Dougherty then reached out to his HR manager,
Maureen Dumond, who told him that CNN was already in the
process of hiring someone else and would not hold the
position open for him. Id. ¶ 24. Dougherty also
claims that Dumond told him he could not return to work
unless he was fully fit for duty, id., a statement
Dumond denies making, see Dumond Dep. 31:9-12,
Def.'s Reply Supp. Summ. J. Ex. 1, ECF No. 44-1. On
February 17, 2016, Dougherty made a request for an
accommodation under the ADA to Dumond. Dougherty Aff. ¶
26. Following the request, Dougherty claims that Dumond
called him and was dismissive of the ADA request, stating
“you made it before you went to the doctor!”
Id. ¶ 27. On February 19, 2016, Dougherty claims
that he made a request for FMLA leave for the first time,
which CNN denied because his FMLA leave was exhausted.
Id. ¶ 29.
his ADA request, Dougherty again visited Rudzki, who cleared
him to return to light-duty. Id. ¶ 28. In
connection with clearing Dougherty's return to
light-duty, Rudzki again issued a prescription for Dougherty
to be provided with a monopod, EasyRig system, and quick
release plate. Feb. 19, 2016 Prescription, Pl.'s
Opp'n Mot. Summ. J. Ex. 36, ECF No. 36-37. On February
22, 2016, Rudzki provided a more detailed list of the
restrictions and accommodations Dougherty would need for a
return to light duty, including that he be “[a]ble to
work the Crew/Slot assignment desk, ” that he
“avoid, for now, carrying equipment downstairs, ”
and that he “[f]or now avoid running or walking with
camera while shooting.” Feb. 22, 2016 Prescription,
Pl.'s Opp'n Mot. Summ. J. Ex. 44, ECF No. 36-45.
Rudzki indicated that Dougherty would be expected to be on
light duty for about eight weeks. See Feb. 19, 2016
Prescription 2. Dougherty forwarded the documents from Rudzki
to CNN, see Def.'s SMF ¶¶ 34, 38, and
CNN indicated that the proposed accommodations would be
discussed with Dougherty's management team, see
Id. ¶¶ 37, 39. According to Dumond, at a
meeting with Kinney, Schantz, and John Courtney-another CNN
employee who provided executive oversight for
photojournalists in DC-it was determined that Dougherty could
not perform the essential functions of his job even with his
proposed accommodations. Dumond Dep. 19:5-22, Def.'s Ex.
J; see also Schantz Dep. 87:1-12, Def.'s Ex. C
(noting that proposed accommodations “would help
[Dougherty] but they wouldn't get him to the point where
he could do the essential [sic] accommodations”).
March 8, 2016, Dumond left Dougherty a voicemail message
letting him know that his ADA accommodation request had been
received after CNN had created a job posting for his
position, that CNN was going to “continue with the
recruitment process, ” and that recruitment was
“fairly far along in the process at this point.”
Voicemail from Maureen Dumond, Pl.'s Opp'n Mot. Summ.
J. Ex. 13. On March 15, 2016, CNN hired Scott Pisczek,
see March 17, 2016 CNN HR E-Mail, Pl.'s
Opp'n Mot. Summ. J. Ex. 14, ECF No. 36-15, a 35-year old
man, to fill Dougherty's position, see Pisczek
Dep. 7:5; 13:16-22, Pl.'s Ex. 15, ECF No. 36-16. On March
17, 2016, Dougherty received an e-mail informing him that he
was no longer an active employee of CNN and directing him to
turn in his badge, Dougherty Aff. ¶ 35, effectively
filed an administrative complaint with the Equal Employment
Opportunity Commission on March 14, 2016. Am. Compl. ¶
5, ECF No. 10. On March 15, 2017, he sued CNN in D.C.
Superior Court. See Compl., Def.'s Notice of
Removal Ex. 1, ECF No. 1-1. After CNN removed the case to
this Court, see Def.'s Notice of Removal, ECF
No. 1, Dougherty filed the operative amended complaint on
July 7, 2017. See Am. Compl. In the amended
complaint, Dougherty brings ten claims altogether. See
Id. ¶¶ 104-182. Dougherty's first four
claims are for interference with, and retaliation for
exercising, his rights under both the FMLA and DC FMLA.
See Id. ¶¶ 104-19; 167-82. Next, Dougherty
brings four claims under the DCHRA, for disability and age
discrimination, failure to accommodate, and retaliation.
See Id. ¶¶ 120-59. Finally, Dougherty
brings claims for breach of contract and violation of the
D.C. Wage Payment and Wage Collection Act. See Id.
¶¶ 160-66. CNN filed its answer on July 13, 2017.
See Answer, ECF No. 11. On January 15, 2019, the
network moved for summary judgment. See Def.'s
Mem. Supp. Summ. J., ECF No. 28. Dougherty filed his
opposition on March 18, 2019, see Pl.'s
Opp'n Mot. Summ. J., ECF No. 36-2, and CNN filed its
reply on April 8, 2019, see Def.'s Reply Supp.
Summ. J., ECF No. 44. On August 7, 2019, Dougherty filed a
surreply. See Pl.'s Surreply, ECF No. 46. On
August 16, 2019, CNN filed a response to the surreply.
See Def.'s Resp. Surreply, ECF No. 47.
may grant summary judgment when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A “material” fact is one
capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is “genuine” if
there is enough evidence for a reasonable jury to return a
verdict for the non-movant. See Scott v. Harris, 550
U.S. 372, 380 (2007).
principal purpose of summary judgment is to streamline
litigation by disposing of factually unsupported claims or
defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). The movant bears the initial burden of
identifying portions of the record that demonstrate the
absence of any genuine issue of material fact. See
Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323.
In response, the non-movant must point to specific facts in
the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering
a motion for summary judgment, a court must “eschew
making credibility determinations or weighing the evidence[,
]” Czekalski v. Peters, 475 F.3d 360, 363
(D.C. Cir. 2007), and all underlying facts and inferences
must be analyzed in the light most favorable to the
non-movant, see Anderson, 477 U.S. at 255.
Nevertheless, conclusory assertions offered without any
evidentiary support do not establish a genuine issue for
trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.
moved for summary judgment on all claims. As an initial
matter, the Court dismisses Dougherty's breach of
contract and wage claims because he withdrew those claims in
his opposition. See Pl.'s Opp'n 7. Given the
late stage in this litigation and Dougherty's decision to
voluntarily dismiss the claims after CNN filed its motion for
summary judgment, the Court dismisses the claims with
prejudice pursuant to Fed.R.Civ.P. 41(a)(2). See Id.
(providing for dismissal “at the plaintiff's
request only by court order, on terms that the court
considers proper”); see also, e.g.,
Markowicz v. Johnson, 206 F.Supp.3d 158, 168 (D.D.C.
2016) (dismissing claim with prejudice pursuant to Rule 41
when plaintiff withdrew it in opposition to summary judgment
motion). The Court denies as moot CNN's motion for
summary judgment on those two claims.
on to Dougherty's remaining live claims, the Court grants
CNN's motion for summary judgment in part and denies it
in part. The Court first addresses Dougherty's DCHRA
claim for failure to accommodate; before reviewing together
his disability discrimination, age discrimination, and
retaliation claims under the DCHRA; then the FMLA and DCFMLA
interference claims; and finally the FMLA and DCFMLA
retaliation claims. Because there is a genuine issue of
material fact as to whether Dougherty could undertake the
essential functions of the photojournalist position, the
Court denies CNN's motion for summary judgment as to the
failure to accommodate claim. And, finding that there is also
a genuine dispute of material fact regarding whether
CNN's asserted legitimate reason for Dougherty's
termination was a pretext for discrimination or retaliation,
the Court also denies summary judgment on Dougherty's
remaining DCHRA claims. Next, CNN has shown that Dougherty
was ineligible for both FMLA and DC FMLA leave as of January
1, 2016, and did not become eligible for either at any point
until his termination. The Court accordingly grants CNN's
motion for summary judgment as to his FMLA and DC FMLA
interference claims. Finally, because Dougherty was
ineligible under both statutes, the Court also grants
CNN's motion for summary judgment on his FMLA and DC FMLA
The Court Denies Summary Judgment on Dougherty's Failure
to Accommodate Claim
Court first reviews CNN's motion for summary judgment on
Dougherty's claim for failure to accommodate pursuant to
the DCHRA. DCHRA failure to accommodate claims “are
analyzed in the same manner as an ADA [Americans with
Disabilities Act] claim.” Giles v.
Emps. Credit Union, 32 F.Supp.3d 66, 70 (D.D.C. 2014).
And in order to make out a failure to accommodate claim under
the ADA, a plaintiff “must demonstrate by a
preponderance of the evidence: (1) that he was an
individual who had a disability within the meaning of the
statute; (2) that the employer had notice of h[is]
disability; (3) that with reasonable accommodation he could
perform the essential functions of h[is] job; and (4) that
the employer refused to make such accommodations.”
Lee v. District of Columbia, 920 F.Supp.2d 127,
133-34 (D.D.C. 2013) (quoting Etheridge v. FedChoice Fed.
Credit Union, 789 F.Supp.2d 27, 35 (D.D.C. 2011)). CNN
argues that it is entitled to summary judgment because
Dougherty could not perform some of the essential functions
of the photojournalist position, even with his proposed
accommodations. The Court disagrees. It first reviews the
parties' arguments regarding what the relevant essential
functions of the photojournalist position ...