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Dougherty v. Cable News Network

United States District Court, District of Columbia

August 30, 2019




         Granting in Part and Denying in Part Defendants' Motion for Summary Judgment


         Plaintiff 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.

         CNN has 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 The Court first dismisses Dougherty's breach of contract and wage claims, which he has voluntarily withdrawn.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.


         A. The Photojournalist Position at CNN

         A 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.[1] 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.

         Photojournalist 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. D.[2] 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.

         A 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.

         B. Dougherty's Employment at CNN Prior to December 2015

         Dougherty 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.

         In 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).

         Dougherty's 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.

         C. Dougherty's December 2015 Injury and Termination from CNN

         On 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.

         By 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.

         After 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.[3] 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.

         Following 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”).

         On 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 terminating him.[4]

         D. Procedural History

         Dougherty 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.


         A court 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).

         The 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. Cir. 1999).

         IV. ANALYSIS

         CNN has 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.

         Moving 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 retaliation claims.

         A. The Court Denies Summary Judgment on Dougherty's Failure to Accommodate Claim

         The 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.

         Transit 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 ...

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