Dougherty v. Cable News Network

• Decision Date: 30 August 2019
• Docket Number: Civil Action No.: 17-769 (RC)
• Citation: 396 F.Supp.3d 84
• Parties: Martin DOUGHERTY, Plaintiff, v. CABLE NEWS NETWORK, Defendant.
• Court: U.S. District Court — District of Columbia

396 F.Supp.3d 84

Martin DOUGHERTY, Plaintiff,

v.CABLE NEWS NETWORK, Defendant.

Civil Action No.: 17-769 (RC)

United States District Court, District of Columbia.

Signed August 30, 2019

Arinderjit Dhali, Dhali PLLC, Washington, DC, for Plaintiff.

Jenna N. Mennona, Denise Elizabeth Giraudo, Sheppard Mullin Richter & Hampton LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

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 The Court first dismisses Dougherty's breach of contract and wage claims, which he has voluntarily withdrawn.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

II. BACKGROUND

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,...