Dougherty v. Cable News Network ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARTIN DOUGHERTY, :
:
Plaintiff, : Civil Action No.: 17-769 (RC)
:
v. : Re Document No.: 28
:
CABLE NEWS NETWORK, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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Dougherty’s breach of contract and wage claims, which he has voluntarily withdrawn.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,
1
Plaintiff disputes CNN’s description of a photojournalist as “a cameraman who is
responsible for gathering news and shooting video of the news,” Def.’s SMF ¶ 5, arguing that the
title “is a fancy word for a camera person” and citing to Bena’s deposition testimony, Pl.’s Opp’n
1 & 1 n.2, ECF No. 35-2. However, that very deposition testimony contradicts Plaintiff’s
argument, with Bena specifically indicating that photojournalists have a narrower focus than
cameramen at CNN. See Bena Dep. 9:4–12.
2
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
2
In their briefs, both parties only provide very limited excerpts of the deposition
transcripts for the individuals deposed in this case. As a result, not only is the Court restricted in
its ability to determine the context behind answers to questions asked at the depositions, but
some deposition transcript pages included as exhibits to a party’s briefs are not included in the
other’s, and vice-versa. For clarity, when citing to deposition testimony both parties rely on, the
Court notes to which party’s exhibit it is citing.
3
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 . . .
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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,
5
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,
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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
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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
3
In its reply, CNN disputes both statements attributed to Dumond. Def.’s Reply 2 n.3.
CNN contends that Dougherty fabricated those quotes, which it says are not supported anywhere
in the record, see id. at 2, and that “to continue to attribute these quotes to her . . . is improper
and unethical,” id. at 2 n.3. That characterization is incorrect in a number of ways. As an initial
matter, the quotes are supported in the record, by Dougherty’s affidavit (and, possibly, by his
deposition testimony, though the Court is unable to determine so absent the full transcript of his
deposition). Just because CNN does not believe Dougherty’s version of events does not fully
discredit it. Furthermore, Dumond may have denied making the first quote at her deposition, but
CNN does not point to any evidence that she denied making the second one. And CNN’s
admonition that making representations to the Court unsupported in the record is “improper and
unethical,” Def.’s Reply 2 n.3, is belied by the fact that CNN itself makes a number of such
representations in its statement of facts, citing to deposition testimony that it does not include in
its motion, see, e.g., Def.’s SMF ¶ 16 (citing to Schantz Dep. 58:2–16); Def.’s SMF ¶ 54 (citing
to Dougherty Dep. 237:20–239:2).
More generally, the Court is far from impressed by the parties’ representations based on
what they contend to be the evidence in the record. The Court agrees with CNN that Dougherty
at times mischaracterizes the record, inaccurately quoting to or characterizing deposition
testimony. But it strikes the Court as particularly ill-advised for CNN to argue that, “[i]n a
transparent effort to mislead this Court,” Dougherty “relies on partial, incomplete portions of
deposition transcripts,” Def.’s Reply 2, when, as discussed supra, CNN does the exact same
thing in both its motion and its reply.
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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
4
In its reply, CNN argues that Dougherty was not actually terminated in March 2016,
because “CNN continued to pay for [his] cell phone – and, [he] publicly held himself out to be a
photojournalist for CNN.” Def.’s Reply 7 n.9. But CNN does not support this assertion with
any evidence. And Pisczek noted at his deposition that he was told on his first day Dougherty
“was no longer there” and that he had taken over Dougherty’s gear. Pisczek Dep. 13:18–22.
Taking all inferences in Dougherty’s favor, as it must when examining CNN’s motion for
summary judgment, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), the Court has
9
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.
III. LEGAL STANDARD
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.
ample evidence to conclude for the purposes of the motion that Dougherty was terminated on
March 17, 2016.
10
Rawle 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
11
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
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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 are, before
determining whether Dougherty was able to perform those essential functions. Finding that
CNN has not shown Dougherty was unable to perform the essential functions of his position, the
Court denies the network’s motion for summary judgment. 5
1. There Remains a Genuine Issue of Material Fact Regarding
Whether Climbing Is an Essential Function of the Photojournalist Position
First, the Court addresses the parties’ arguments regarding what are the essential
functions of the photojournalist position. In its motion, CNN argues that essential functions a
photojournalist must be able to perform include walking, running, carrying equipment, and
5
CNN also argues that it is entitled to summary judgment because it “engage[d] in the
interactive process to try to accommodate [Dougherty],” but “there was simply no
accommodation which would have enabled [him] to perform the essential functions of his
position.” Def.’s Mem. Supp. 23. This rationale for summary judgment also fails when, as
discussed above, CNN has not shown that Dougherty was unable to perform the essential
functions of his position.
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climbing. Def.’s Mem. Supp. 17. In his opposition, Dougherty appears to concede that carrying
equipment is an essential function of the position. See Pl.’s Opp’n 28 (“The job description does
require one to lift a minimum of 35 pounds.”). But he argues that CNN has otherwise
“mischaracterized [the] essential functions and . . . made them from whole cloth.” Id. After
briefly discussing what constitutes an essential function, the Court reviews the parties’
arguments regarding what functions are essential. Finding that the evidence in the record does
not indicate that Dougherty was unable to walk or run when he made his request for an
accommodation, the Court declines to address whether walking or running are essential
functions. However, the Court agrees with Dougherty that CNN has not established climbing to
be an essential function of the photojournalist position.
An individual qualifies for protection under the ADA when he, “with or without
accommodation, can perform the essential functions of the employment position that such
individual holds.” 42 U.S.C. § 1211(8). The statute provides that “consideration shall be given
to the employer’s judgment as to what functions of a job are essential, and if an employer has
prepared a written description before advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential functions of the job.” Id. Implementing
regulations for the ADA provide further guidance both as to what might qualify as an essential
function and as to what type of evidence can help establish what those essential functions are.
See 29 C.F.R. § 1630.2(n). “The term essential function means the fundamental duties of the
employment position . . . . The term . . . does not include the marginal functions of the position.”
Id. § 1630.2(n)(1). Among others, evidence of whether a job function is essential includes “[t]he
employer’s judgment,” “[w]ritten job descriptions prepared before . . . interviewing applicants
for the job,” “[t]he amount of time spent on the job performing the function,” and “[t]he
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consequences of not requiring the incumbent to perform the function.” Id. § 1630.2(n)(3); see
also Hunt v. District of Columbia, 66 A.3d 987, 990 (D.C. 2013) (citing to 29 C.F.R. §
1630.2(n)(3) when evaluating essential functions of position in DCHRA claim). “[T]he
determination of whether physical qualifications are essential functions of a job requires the
court to engage in a highly fact-specific inquiry,” Hall v. U.S. Postal Serv., 857 F.2d 1073, 1079
(6th Cir. 1988) (quoting Arline v. Sch. Bd. of Nassau Cty., 772 F.2d 759, 764–65 (11th Cir.
1985)), and “courts generally view a dispute over the definition of a job’s essential functions as a
question of fact that should be resolved by a jury,” Baker v. Potter, 294 F. Supp. 2d 33, 44
(D.D.C. 2003) (citing cases).
As an initial matter, it is unclear to the Court that determining whether walking or
running are essential functions of the photojournalist position is relevant to its analysis, given
that the facts currently in the record do not suggest Dougherty was unable to perform those
functions. CNN contends that the functions are essential, see Def.’s SMF ¶ 12, because the
photojournalist position at CNN has a focus on gathering video for news specifically, with no set
schedule and with photojournalists being always expected to “jump into action” when breaking
news occurs, Schantz Dep. 56:19–20, Def.’s Ex. C; see also id. at 56:13–16, Def.’s Ex. C (noting
that the position is “most often correlated to a fireman who [sic] you sit in the fire department all
day until the bell rings and then you have to run”); Dougherty Dep. 85:17–86:2, Def.’s Ex. B.
(noting that Dougherty would do “whatever it takes” to gather news). Dougherty admits that he
had to walk long distance while working as a photojournalist, see Dougherty Dep. 92:19–20,
Def.’s Ex. B (answering the question “[d]id you have to walk long distances?” with “I think . . .
that’s obvious”); see also 29 C.F.R. § 1630.2(n)(3)(iii) (mentioning “[t]he amount of time spent
on the job performing the function” as evidence of whether a function is essential), and that he
15
sometimes had to run in order to catch breaking news, Dougherty Dep. 90:9–11, 92:9–13, Def.’s
Ex. B (admitting that Dougherty probably had to run after stories on occasion). But he argues
that running and walking are “at best a marginal function of his employment.” Pl.’s Opp’n 30. 6
Ultimately, though, there is no evidence in the record to suggest that Dougherty was
unable to walk or run at the time he made his request for an accommodation. Dougherty was
determined to be totally incapacitated by Rudzki on January 5, 2016, at which time he
presumably could not run or walk. See Dougherty Aff. ¶ 16. However, Rudzki then cleared
Dougherty for light duty on February 22, 2016. See Feb. 22, 2016 Prescription. And while
Rudzki indicated that Dougherty was restricted from “running or walking with camera while
shooting,” id. (emphasis added), there is no indication in the record whatsoever that Dougherty
was restricted from, or in fact unable to, walk or run as of February 22, 2016. 7 Even assuming,
arguendo, that the functions were essential, CNN has failed to show that Dougherty was unable
6
The Court notes that Dougherty mischaracterizes the record on several occasions while
arguing that the photojournalist position does not require the ability to walk or run. According to
Dougherty, Kinney admitted at his deposition that a wheelchair-bound photojournalist could be
employed in thousands of positions at CNN, which shows walking and running cannot be
essential functions of the position. Pl.’s Opp’n 29. But as CNN points out in its reply, the
context of the deposition makes clear that Kinney was answering a hypothetical question by
Dougherty’s counsel about what assignment a wheelchair-bound photojournalist could be
assigned to, if that photojournalist had been hired. See Def.’s Reply 14–15; Kinney Dep. 40:21–
41:2, Pl.’s Ex. 6 (“If I’ve hired this person to work as a photojournalist, they can be assigned to
anything that any of the other 84 photojournalists could also be assigned to.”). Similarly,
Dougherty argues in his opposition that the photojournalists he deposed were out-of-shape and
essentially unable to run. See Pl.’s Opp’n 2 n.4. Setting aside the unnecessarily impolite manner
in which he describes those photojournalists’ abilities, Dougherty does not present any evidence
to substantiate that argument.
7
Admittedly, the instructions in the prescription are somewhat vague. The request that
Dougherty “avoid running or walking with camera while shooting,” Feb. 22, 2016 Prescription,
could be interpreted to mean that Dougherty should avoid both 1) running and 2) walking with a
camera while shooting, or that Dougherty should avoid both 1) running with a camera while
shooting and 2) walking with a camera while shooting. But CNN does not attempt to clarify the
request, and the Court must take all inferences in Dougherty’s favor at the summary judgment
stage.
16
to perform them. The Court accordingly need not determine whether running or walking were
essential functions of the photojournalist position, and will not do so.
On the other hand, Dougherty’s light-duty prescription indicated that he should avoid
going down stairs, see Feb. 22, 2016 Prescription, and the Court must therefore address whether
climbing is an essential function of the photojournalist position. CNN contends that the function
is essential, a judgment to which the Court should give deference. See Def.’s SMF ¶ 12; 29
C.F.R. § 1630.2(n)(3)(i). CNN’s argument is that, just like with walking and running, a
photojournalist may be required to climb structures in order to gather news, which renders the
function crucial in a photojournalist’s mission to gather news at all cost. See Def.’s Mem. Supp.
16. But the network provides very little additional evidence on the issue. CNN’s job description
for the photojournalist position does not explicitly list climbing as one of the functions of the
position. See Pl.’s Opp’n 28; CNN Photojournalist Job Posting Description. In fact, the ability
to “lift at least 35 pounds” is the only requirement in the job description that relates to physical
ability. See CNN Photojournalist Job Posting Description. The job description otherwise
provides a detailed summary of abilities CNN expects from its photojournalists, with a heavy
focus on technical skills in shooting and editing. See id. And the implementing regulations for
the ADA make clear that “[w]ritten job descriptions prepared before advertising or interviewing
applicants for the job” are a form of evidence of whether a particular function is essential. 29
C.F.R. § 1630.2(n)(3)(ii). A job posting description that is devoid of any physical ability
requirement “calls into doubt [CNN’s] definition of the essential functions of . . . [the] position.”
Acevedo v. City of Philadelphia, 680 F. Supp. 2d 716, 734 (E.D. Pa. 2010) (denying summary
judgment when functions deemed essential by defendant were not included in written description
of position); see also Baker, 294 F. Supp. 2d at 44 (denying summary judgment to employer
17
when description of position did not include employer’s asserted essential functions); Ward v.
Wal-Mart Stores, Inc., 140 F. Supp. 2d 1220, 1227–28 (D.N.M. 2001) (denying summary
judgment to employer when “Matrix of Essential Job Functions” that had been provided to
employee at interview did not include job function employer claimed to be essential during
litigation).
In addition, unlike with walking and running, which might be needed whenever a
breaking news story requires photojournalists to speedily move locations, the ability to climb
structures is entirely location-dependent. And the only references to climbing in the record come
from Dougherty’s admission at his deposition that he “probably” had to climb a structure to
gather news in his career, Dougherty Dep. 86:8–12, Def.’s Ex. B, and Courtney’s testimony that
photojournalists may have to climb stairs at the White House and Russell Rotunda locations,
Courtney Dep. 96:18–97:6, Def.’s Ex. D. Absent anything more, CNN has not shown that
climbing is unlike other demanding physical activity Courtney indicated photojournalists may
have to undertake in some circumstances to gather news, such as “crawling, . . . standing in
standing water, in a hurricane, [and] navigating debris fields.” Id. at 51:1–3, Def.’s Ex. D. Just
because a photojournalist may have to engage in such an activity on occasion does not make it
essential to the position—the Court certainly doubts that CNN considers the ability to navigate
debris fields to be an essential function of a photojournalist. See, e.g., Williams v. ABM Parking
Servs. Inc., 296 F. Supp. 3d 779, 785–86 (E.D. Va. 2017) (finding that genuine issue of material
fact existed as to whether driving shuttle bus was essential function of position when evidence
indicated employees performing the position rarely drove shuttle buses). Essential functions
“do[] not include the marginal functions of the position,” 29 C.F.R. § 1630.2(n)(1), and here
18
CNN has not provided evidence to suggest that climbing occurs more than marginally in the
course of performing the position of photojournalist.
2. CNN Has Not Shown That Dougherty Cannot Perform the
Essential Functions of the Photojournalist Position
Next, the Court reviews whether Dougherty can perform the essential functions of the
photojournalist position. CNN contends that Dougherty was unable to perform the essential
functions of the position because he was unable to run, walk, go up or down stairs, and carry
equipment. See Def.’s Mem. Supp. 18–22. On the record before it, the Court cannot agree. As
an initial matter, CNN has only conclusively established that carrying equipment is an essential
function of the photojournalist position, and the network has provided no evidence that
Dougherty was unable to carry equipment when he made his request for an accommodation. In
addition, even reading CNN’s motion liberally, the network still fails its burden to show that
Dougherty could not perform the essential functions of his position. The Court therefore denies
CNN’s motion for summary judgment.
First, CNN has not shown that Dougherty was unable to carry equipment. In its motion,
CNN equates the restriction that Dougherty “avoid . . . carrying equipment downstairs,” Feb. 22,
2016 Prescription, with a complete restriction on carrying equipment, see Def.’s Mem. Supp.
20–22. CNN does not indicate why it does so when the prescription clearly appears to restrict
only Dougherty’s ability to carry equipment in a particular situation (going down stairs), or
provide any other evidence to indicate that Dougherty was otherwise unable to carry equipment.
The network has therefore failed its burden to show that Dougherty could not perform the only
essential function of the photojournalist position it has conclusively established. This alone
warrants denial of summary judgment on Dougherty’s failure to accommodate claim.
19
Second, even if the Court were to assume, arguendo, that CNN had shown walking and
running to be essential functions, it would still find that the network has failed to show that
Dougherty was unable to perform the essential functions of the photojournalist position. As
discussed above, Rudzki’s prescription indicated that Dougherty should “avoid running or
walking with camera while shooting,” rather than avoiding running or walking altogether. Feb.
22, 2016 Prescription. Perplexingly, while CNN devotes a significant portion of its motion to
explaining why running and walking are essential functions of the photojournalist position, it
never explains why walking while shooting and running while shooting are also essential
functions. See Pl.’s Opp’n 28. On its face, Dougherty’s February 22, 2016 light duty
prescription does not appear to restrict his ability to walk or run, and CNN has not otherwise
established that Dougherty was unable to perform those functions.
Finally, while the record is devoid of evidence that running while shooting is a function
photojournalists sometimes have to engage in—let alone that it is an essential function—it does
contain at least some evidence that, in reporting on news stories, photojournalists sometimes
have to walk while shooting. See, e.g., Def.’s Mem. Supp. 11 (citing @MSNBC, Twitter (June
15, 2018), https://mobile.twitter.com/MSNBC/status/ 1007603418171629570) (pointing to video
showing cameramen walking while shooting video of President Donald Trump at the White
House). But even were the Court to assume further that walking while shooting was an essential
function of the photojournalist position—which CNN has not shown—CNN appears to
acknowledge in its motion that the use of an EasyRig camera system would allow Dougherty to
perform that function, opposing the accommodation solely on the ground that Dougherty would
not be able to run while filming with it. See Def.’s SMF ¶ 45 (noting that the EasyRig was not a
reasonable accommodation because “the camera would hit [Dougherty] in the face if he
20
attempted to run while using the EasyRig”); Schantz Aff. ¶ 15, Def.’s Mot. Summ. J. Ex. A, ECF
No. 28-1 (“It is not possible to run while using an EasyRig because it would hit Plaintiff in the
face as he was running.”); see also Jenkins Dep. 87:2, 87:11–12 (“I wouldn’t run with [the
EasyRig] to use it. But if I had to run, I could run . . . . I wouldn’t run with the idea that I’m
sending back any kind of shot.”).
B. The Court Denies Summary Judgment on Dougherty’s Disability Discrimination,
Retaliation, and Age Discrimination Claims Under the DCHRA
The Court moves on to Dougherty’s remaining claims under the DCHRA, for disability
discrimination, retaliation, and age discrimination. Because all three claims are evaluated under
the McDonnell Douglas framework, and because CNN asserts the same legitimate, non-
discriminatory reason for Dougherty’s termination as to each claim, the Court addresses them
together in this section. The Court addresses each claim in turn. And, finding that there remains
a genuine issue of material fact regarding whether CNN’s asserted legitimate, non-discriminatory
reason was pretextual, the Court denies the motion for summary judgment on all three claims.
1. CNN Is Not Entitled to Summary Judgment on Dougherty’s Disability Discrimination Claim
The Court first addresses Dougherty’s claim of disability discrimination under the
DCHRA. As with failure to accommodate claims, DCHRA disability discrimination claims are
analyzed under the same framework as the ADA. See, e.g., DuBerry v. District of Columbia,
582 F. Supp. 2d 27, 40 (D.D.C. 2008). Dougherty contends that CNN discriminated against him
on the basis of his disability by terminating him in March 2016. Pl.’s Opp’n 27. CNN argues
that it is entitled to summary judgment because Dougherty does not qualify as disabled under the
ADA, and because it has provided a legitimate, non-discriminatory reason for his termination.
Def.’s Mem. Supp. 24. The Court is unconvinced.
21
Under the ADA, where there is no direct evidence of discrimination, disability
discrimination claims follow the familiar McDonnell-Douglas burden-shifting framework. First,
a plaintiff must establish his prima facie case of discrimination by showing 1) that he had a
disability within the meaning of the ADA, 2) that he was qualified for the position, with or
without an accommodation, and 3) that he suffered an adverse action because of his disability.
Walden v. Patient-Centered Outcomes Research Inst., 304 F. Supp. 3d 123, 132–33 (D.D.C.
2018) (citing Swanks v. WMATA, 179 F.3d 929, 934 (D.C. Cir. 1999)). If the plaintiff can make
out his prima facie case, the burden then shifts to the employer to “articulate some ‘legitimate,
nondiscriminatory reason’ for the action challenged.” Id. (quoting Giles, 794 F.3d at 6). When
an employer makes such a showing, “the district court need not—and should not—decide
whether the plaintiff actually made out a prima facie case.” Brady v. Office of Sergeant at Arms,
520 F.3d 490, 494 (D.C. Cir. 2008). Instead, “the question on summary judgment becomes
whether, based on the totality of the parties’ evidence, a reasonable jury could determine that the
defendant’s proffered explanation was pretext for discrimination.” Conn v. Am. Nat’l Red Cross,
149 F. Supp. 3d 136, 143 (D.D.C. 2016) (citing Brady, 520 F.3d at 494–95).
Here, CNN argues that Dougherty has failed to make out his prima facie case because he
is unable to perform the essential functions of the photojournalist position, which means he is not
qualified for the position. See Def.’s Mem. Supp. 26. For the reasons described above in Part
IV.A., the Court rejects that argument because CNN has not shown that Dougherty was unable to
perform the essential functions of a photojournalist. But CNN also argues that it had a
legitimate, non-discriminatory reason for terminating Dougherty: Dougherty “was unable to
return to work and CNN’s business and operational needs necessitated filling the vacant
position.” Def.’s Mem. Supp. 27. According to CNN, because “the 2016 presidential election
22
was unprecedented and called for an ‘all hands on deck’ approach,” requiring photojournalists to
“travel[] often and work[] an unparalleled number of overtime hours,” the network could not
afford to keep Dougherty’s position unfilled as he recovered from his injury. Id. The Court
must therefore assess whether, based on the record before it, “a reasonable jury could determine
that [CNN’s] proferred explanation was pretext for discrimination.” Conn, 149 F. Supp. 3d at
143.
As an initial matter, the obvious problem with CNN’s asserted legitimate, non-
discriminatory reason for terminating Dougherty is that he had in fact been cleared to return to
work on light duty by his doctor. See Feb. 22, 2016 Prescription. And because CNN has not
shown that the restrictions Rudzki imposed prevented Dougherty from performing the essential
functions of his position, a reasonable juror could conclude that Dougherty could have performed
photojournalist assignments and thereby obviated any need for CNN to fill his position. But
Dougherty also provides evidence that further suggests CNN’s asserted legitimate, non-
discriminatory reason may be pretextual. Dougherty asserts that, both after his 2015 and during
his 2016 leave, several CNN employees told him he could not return to work unless he was
100% fit for duty. Dougherty Aff. ¶¶ 11, 23, 24. He also claims that Dumond, his HR manager,
derided his request for an accommodation under the ADA. Id. ¶ 27. A reasonable jury could
infer from these comments that Dougherty’s disability, and his inability to perform fully as a
result, were the real motivation behind CNN’s decision to terminate him. CNN argues that
“[u]ncorroborated allegations are not sufficient to create a material factual dispute and should
thus be rejected.” Def.’s Reply 2 (citing Slate v. Am. Broad. Cos., Inc., 941 F. Supp. 2d 27, 39–
40 (D.D.C. 2013)). But “the D.C. Circuit has also emphasized that ‘there is no rule of law that
the testimony of a discrimination plaintiff, standing alone, can never make out a case of
23
discrimination that could withstand a summary judgment motion.’” Norris v. WMATA, 342 F.
Supp. 3d 97, 117 (D.D.C. 2018) (quoting Desmond v. Mukasey, 530 F.3d 944, 964 (D.C. Cir.
2008)). Rather than making “subjective, conclusory statements regarding circumstances over
which []he lacks personal knowledge,” id., Dougherty here is making specific allegations
regarding statements made to him by CNN employees.
And in any event, the allegations Dougherty makes in his affidavit are not entirely
uncorroborated. The testimony of one CNN witness who was involved in reviewing
Dougherty’s requested accommodations, Paul Miller, could be read to suggest hostility to
accommodating his disability, or to accommodating photojournalists with a disability altogether.
See Miller Dep. 43:13–44:8, Pl.’s Opp’n Mot. Summ. J. Ex. 22, ECF No. 36-23 (explaining that
Miller wrote in an e-mail “[l]ight duty never worked for [Dougherty] in the past,” because “[it]
did not work for his department for him to return on light duty”); id. at 45:1–8, Pl.’s Ex. 22
(changing course and noting that the statement instead “was likely a general statement about
photojournalists”); id. at 67:10–68:19, Pl.’s Ex. 22 (noting that Miller did not believe Rudzki’s
requested accommodations were legitimate because he had never seen a doctor make a request
for specific camera equipment to be provided as an accommodation in the past). On March 8,
2016, Dumond also left a voicemail with Dougherty letting him know that he had made his
accommodation request too late and that CNN would be moving on with the hiring process for
his replacement, which was “fairly far along in the process at this point.” Voicemail from
Maureen Dumond. While CNN is correct that the voicemail can be interpreted as simply
relaying that CNN was moving forward with filling Dougherty’s position, see Def.’s Reply 20, it
can also be interpreted as consistent with the statements Dougherty claims Dumond made to him
regarding his disability and as further indicating CNN’s disregard of it. Finally, as Dougherty
24
points out, although CNN HR indicated as part of the “business justification” for terminating him
that the network faced an unprecedented amount for work for its photojournalists and “plan[ned]
to up-staff with temporary photojournalists in order to alleviate the strain of political coverage,”
Feb. 10, 2016 CNN HR E-Mail, it never did so, see CNN Resps. to Pl.’s Am. Third Set of
Interrogs. 7, Pl.’s Mot. Summ. J. Ex. 30, ECF No. 36-31. This casts at least some doubt on the
extent of the pressing business need for filling Dougherty’s position, in particular given that, by
the time Pisczek came on board, Dougherty had already been cleared to return on light duty. 8
Because CNN has not shown that Dougherty was unable to return to work and take on
assignments as a photojournalist, and because Dougherty provides additional evidence that
further challenges the network’s asserted legitimate, non-discriminatory reason for terminating
him, the Court finds that CNN has not met its burden to show that it is entitled to summary
judgment. The Court denies the motion as to the disability discrimination claim.
2. CNN Is Not Entitled to Summary Judgment on Dougherty’s Retaliation Claim
Next, the Court reviews CNN’s motion for summary judgment on Dougherty’s claim for
retaliation under the DCHRA. As with Dougherty’s disability discrimination claim, the DCHRA
retaliation claim is evaluated under the same standard as retaliation claims under federal law,
with courts applying the McDonnell Douglas framework when there is no direct evidence of
retaliation. See Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010) (citing Carpenter v.
Fed. Nat’l Mortg. Ass’n, 174 F.3d 231, 235–36 n.3 (D.C. Cir. 1999)) (noting that DCHRA
8
In another one of its responses to Dougherty’s interrogatories, CNN noted that its
pressing business need was created by “the unprecedented number of candidates and the constant
coverage of the Presidential election season that began in late 2015.” Def.’s Resp. Pl.’s Fifth
Interrog. 3, Def.’s Reply Ex. G, ECF No. 44-7. Yet CNN had no issue with Dougherty
remaining on leave between March 2015 and at least November 2015, which also undercuts its
stated business rationale for his termination.
25
claims are evaluated under the McDonnell Douglas framework). CNN argues that to the extent
Dougherty engaged in any protected activity, he both has failed to establish his prima facie case
and cannot show that the network’s asserted legitimate, non-retaliatory reason for his termination
was a pretext for retaliation. See Def.’s Mem. Supp. 31–32. For much of the same reasons as
with Dougherty’s disability discrimination claim, the Court disagrees.
To make a prima facie case of retaliation under the DCHRA, a plaintiff “must show: (1)
that []he engaged in protected activity; (2) that []he was subjected to adverse action by the
employer; and (3) that there existed a causal link between the adverse action and the protected
activity.” Walden v. Patient-Centered Outcomes Research Inst., 177 F. Supp. 3d 336, 343
(D.D.C. 2016) (quoting Powell v. Am. Red Cross, 518 F. Supp. 2d 24, 36 (D.D.C. 2007)). Once
the plaintiff makes his prima facie case, the burden shifts to the defendant to provide a
legitimate, non-retaliatory reason for the adverse action, and when, as here, the defendant has
done so, the Court must “look to whether a reasonable jury could infer retaliation from all the
evidence, which includes not only the prima facie case but also the evidence the plaintiff offers
to attack the employer’s proferred explanation.” Gaujacq, 601 F.3d at 577 (quoting Jones v.
Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009)).
CNN first argues that Dougherty’s claim fails as a matter of law because he cannot show
that the decision to terminate him was causally connected to any protected activity. See Def.’s
Mem. Supp. 30. The Court disagrees. According to CNN, “there can be no causal connection
between [Dougherty’s] request for leave and the backfilling of his position because the decision
was made for one reason: the pressing business needs of CNN.” Id. at 31. But the problem with
this argument is that it confuses the causal link requirement of a plaintiff’s prima facie case with
the plaintiff’s burden to counter any asserted legitimate, non-retaliatory reason for an adverse
26
action. That CNN has asserted a legitimate, non-retaliatory explanation for terminating
Dougherty does not necessarily defeat any causal link between his protected activity and his
termination; it merely requires Dougherty to provide sufficient evidence challenging that
explanation for the Court to find that “a reasonable jury could infer retaliation,” Gaujacq, 601
F.3d at 577 (quoting Jones, 557 F.3d at 677).
Before addressing that asserted legitimate, non-retaliatory explanation, the Court notes
that Dougherty has provided sufficient evidence to infer causation at the prima facie stage. It is
well-established that “[r]equests for accommodation are ‘protected activities’ within the meaning
of the ADA.” Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 77 (D.D.C. 2009) (quoting
DuBerry, 582 F. Supp. 2d at 37). And temporal proximity between a protected activity and
adverse action can be sufficient for a plaintiff to establish causality when making a prima facie
case of retaliation. See, e.g., Carney v. American Univ., 151 F.3d 1090, 1095 (D.C. Cir. 1998)
(“The causal connection component of the prima facie case may be established by showing that
the employer had knowledge of the employee’s protected activity, and that the adverse personnel
action took place shortly after that activity.” (quoting Mitchell v. Baldridge, 759 F.2d 80, 86)
(D.C. Cir. 1985)). Here, Dougherty was terminated less than a month after making his request
for accommodation. See Dougherty Aff. ¶ 29 (noting that accommodation request was made on
February 19, 2016); Dougherty Aff. ¶ 35 (noting that Dougherty was terminated on March 17,
2016). Courts have routinely found such close temporal proximity to warrant an inference of
causality at the prima facie stage. See, e.g., McNair v. District of Columbia, 213 F. Supp. 3d 81,
90 (D.D.C. 2016) (finding plausible inference of causation when protected activity occurred
within a month of adverse action); Stone-Clark v. Blackhawk, Inc., 460 F. Supp. 2d 91, 98
(D.D.C. 2006) (same); see also Kilby-Robb v. Devos, 247 F. Supp. 3d 115, 129 (D.D.C. 2017)
27
(pointing out that “to rely on temporal proximity to prove causal relation, the temporal proximity
must be ‘very close’—generally less than three months” (quoting Lane v. Vasquez, 961 F. Supp.
2d 55, 67–68 (D.D.C. 2013))).
Second, the Court has already discussed the problems with CNN’s asserted, legitimate,
non-retaliatory reason for terminating Dougherty above in Part IV.B.1. Because CNN has not
shown that Dougherty was unable to return to his position on light duty, and thus that he could
not have contributed to the “unprecedented number of assignments and overtime hours required
of photojournalists,” Def.’s Mem. Supp. 31, there is some doubt about the validity of the
network’s asserted legitimate reason for terminating him. Furthermore, the same comments by
CNN employees that suggest a hostility to Dougherty’s disability could be interpreted to suggest
that Dougherty was terminated for trying to exercise his rights by requesting an accommodation.
See, e.g., Dougherty Aff. ¶ 27 (noting that Dumond called Dougherty and was dismissive of his
accommodation request, stating “you made it before you went to the doctor!”); Voicemail from
Maureen Dumond (noting that CNN would continue with its recruitment process because
Dougherty made his accommodation request too late). And it is not entirely clear to the Court
that CNN’s pressing business needs justified Dougherty’s immediate replacement. See, e.g.,
Def.’s Resp. Pl.’s Fifth Interrog. 3, Def.’s Reply Ex. G, ECF No. 44-7 (noting that the pressing
business need created by election season started in late 2015, presumably when Dougherty was
still on leave for his March 2015 surgery). Finding that there remains a genuine issue of material
fact as to whether CNN’s asserted legitimate, non-retaliatory reason for Dougherty’s termination
was pretextual, the Court denies the motion for summary judgment as to the DCHRA retaliation
claim.
28
3. CNN Is Not Entitled to Summary Judgment on Dougherty’s Age Discrimination Claim
Finally, the Court addresses Dougherty’s remaining DCHRA claim, that he was
terminated because of his age. “The Courts of the District of Columbia ‘look to federal court
decisions interpreting the [Age Discrimination in Employment Act (“ADEA”)] when evaluating
age discrimination claims under the DCHRA,’” Schuler v. PricewaterhouseCoopers, LLP, 595
F.3d 370, 376 (D.C. Cir. 2016) (quoting Wash. Convention Ctr. Auth. v. Johnson, 953 A.2d
1064, 1073 n.7 (D.C. 2008)), which apply the McDonnell Douglas framework when direct
evidence of discrimination is not available, see, e.g., Murphy v. PricewaterhouseCoopers, LLP,
580 F. Supp. 2d 4, 10 (D.D.C. 2008). As with Dougherty’s retaliation and disability
discrimination claims, CNN again argues that Dougherty both fails to meet his prima facie case
and that it has provided a legitimate, non-discriminatory reason for his termination. And as with
both those claims, the Court finds neither argument persuasive and accordingly denies the
motion for summary judgment.
To make a prima facie case of discriminatory termination on the basis of age, a plaintiff
must “show[] that he (1) belongs to the statutorily protected age group . . . , (2) was qualified for
the position, (3) was [terminated], and (4) was disadvantaged in favor of a younger person.”
Miller v. Gray, 52 F. Supp. 3d 62, 67 (D.D.C. 2014) (quoting Cuddy v. Carmen, 694 F.2d 853,
857 (D.C. Cir. 1982)). Once a plaintiff establishes his prima facie case, and if the defendant
provides a legitimate, non-discriminatory reason for the termination, the Court must then resolve
the “central question . . . [of whether] the employee produced sufficient evidence for a
reasonable jury to find that the employer's asserted nondiscriminatory reason was not the actual
reason.” Brady, 520 F.3d at 494.
29
Here, CNN again appears to confuse the requirements for a plaintiff to make out their
prima facie case and for a plaintiff to defeat an asserted legitimate, non-discriminatory reason,
arguing circularly that Dougherty cannot establish his prima facie case because of CNN’s
asserted legitimate business needs warranting his termination. See Def.’s Mem. Supp. 34. In
any event, CNN having asserted a legitimate, non-discriminatory reason for Dougherty’s
termination, see id. at 34–35, the Court must determine whether a reasonable jury could find
CNN’s asserted reason to be pretextual, see Brady, 520 F.3d at 494. It finds that sufficient
evidence indicative of pretext has been presented to defeat CNN’s motion. First, as described
above in Parts IV.B.1 and IV.B.2., CNN has not established that Dougherty could not perform
the essential functions of his position when it terminated him, and its justification that business
needs necessitated the quick backfilling of his position therefore falls short at the summary
judgment stage. Additionally, Dougherty points to some extraneous evidence that could be
interpreted to further suggest that he was discriminated against on the basis of age. Dougherty
notes that he was more educated than Pisczek and had won several awards for his work, while
Pisczek had not. See Pl.’s Opp’n 53; Resume of Martin Dougherty, Pl.’s Opp’n Mot. Summ. J.
Ex. 51, ECF No. 36-52; Resume of Scott Pisczek, Pl.’s Opp’n Mot. Summ. J. Ex. 52, ECF No.
36-54. To be sure, it is unclear just how persuasive this argument is when other evidence
suggests CNN may have made the decision to terminate Dougherty’s position prior to Pisczek
applying. See, e.g., Feb. 4, 2016 CNN HR E-mail. But Dougherty is not required to
conclusively establish pretext at this stage—he has shown that CNN had a possible pretext for
his termination, and at trial will have to demonstrate that age was the real reason for the
30
termination in order to prevail on his claim. The Court accordingly denies CNN’s motion for
summary judgment as to the age discrimination claim. 9
C. CNN Is Entitled to Summary Judgment on Dougherty’s FMLA and DC FMLA
Interference Claims Because He Was Ineligible Under Either Statute
The Court next reviews Dougherty’s interference claims under the FMLA and DC
FMLA. Courts in this circuit “regularly analyze both the FMLA and the DCFMLA under the
same legal framework,” Thomas v. District of Columbia, 227 F. Supp. 3d 88, 98 (D.D.C. 2016)
(citations omitted), and the Court accordingly addresses the claims together. Dougherty brings
claims for interference with rights protected by the FMLA and DCFMLA for denying his request
for protected leave starting on January 1, 2016, and subsequently terminating him on March 17,
2016.
The FMLA and DC FMLA guarantee eligible employees a certain amount of protected
leave from work in certain specific circumstances, including for serious medical conditions. An
employee is eligible under the FMLA if he has been employed by his employer for at least 12
months, and has worked at least 1,250 hours with that employer in the previous 12 months. See
29 U.S.C. § 2611(2)(A). The FMLA entitles such an eligible employee to take 12 weeks of
leave during any 12-month period for, inter alia, “a serious health condition that makes the
employee unable to perform the functions of the position of such an employee.” Id. §
2612(a)(1)(D). The DC FMLA is structured similarly, providing eligibility to any employee who
has been employed by the same employer for more than a year and has worked at least 1,000
9
In its reply, CNN argues that Pisczek was actually more qualified than Dougherty, and
that Dougherty’s claim to the contrary is “yet another example of misconstruing the record.”
Def.’s Reply 24 n.23. CNN cites to deposition testimony of Schantz, but does not include the
relevant portions of the transcript of Schantz’s testimony in its reply. Without evidence to
support CNN’s argument, the Court does not credit it.
31
hours for that employer in the previous 12 months. D.C. Code § 32-501(1). Under the DC
FMLA, eligible employees are entitled to take 16 weeks of leave every 24 months for a serious
medical condition. Id. § 32-503(a). District regulations provide that leave qualifying under both
the DC FMLA and the federal FMLA is to be counted concurrently under both laws. D.C. Mun.
Reg. tit. 4, § 1620.2.
To make out a claim of interference with rights protected by the FMLA (and DC FMLA),
a plaintiff must show that “(1) []he was eligible for the FMLA’s protections; (2) h[is] employer
was covered by the FMLA; (3) []he was entitled to take leave under the FMLA; (4) []he
provided sufficient notice of h[is] intent to take leave; and (5) h[is] employer denied h[im]
FMLA benefits to which []he was entitled.” Elzeneiny v. District of Columbia, 195 F. Supp. 3d
207, 217 (D.D.C. 2016) (quoting Pagel v. TIN, Inc., 695 F.3d 622, 627 (7th Cir. 2012)). CNN
argues that because Dougherty used all of his FMLA and DC FMLA leave by taking sixteen
weeks of leave after his March 2015 surgery, he had exhausted his available leave under both
statutes at the time he made his request for FMLA leave starting on January 1, 2016. See Def.’s
Mem. Supp. 9. And in its reply, CNN further contends that Dougherty was ineligible for FMLA
leave altogether as of March 2016, having not worked the required minimum number of hours
between March 2015 and March 2016. See Def.’s Reply 4 n.7 (citing Suppl. Ul-Haque Aff. ¶ 5,
Def.’s Reply Ex. B, ECF No. 44-2). As a result, CNN contends that Dougherty’s claims fail as a
matter of law. See Def.’s Mem. Supp. 9. 10
10
CNN also argues that Dougherty was not prejudiced by any denial of FMLA leave
because he is still unable to work, and therefore that his interference claim fails. Def.’s Mem.
Supp. 10; see Lovey-Coley v. District of Columbia, 255 F. Supp. 3d 1, 11 (D.D.C. 2017) (noting
that prejudice is a necessary element of FMLA interference claims). But the deposition
testimony CNN points to for that proposition does not bear it out. At his deposition, Dougherty
acknowledged that he had not received any note from a doctor indicating that he was cleared to
return to full duty. Dougherty Dep. 270:5–15, Def.’s Ex. B. But Dougherty is not currently
32
Although Dougherty’s opposition is not a model of clarity, he appears to argue in
response 1) that CNN improperly designated his March 2015 leave as FMLA leave when he
declined to take FMLA leave, 2) that CNN improperly retroactively designated the March 2015
leave as DC FMLA leave, 3) that CNN failed to explain how it calculated his FMLA and DC
FMLA leave period, and finally 4) that he would at a minimum have been able to take FMLA
leave again on March 4, 2016, which CNN improperly denied. Pl.’s Opp’n 22–27. In his
surreply, Dougherty further asserts that he did work the required number of hours to be eligible
for FMLA leave as of March 2016, pointing to an earnings record covering the time period
between January 2015 and March 2016. See Martin Dougherty Employee Earnings Record, Pl.’s
Surreply Ex. A.
The Court ultimately agrees with CNN that summary judgment is warranted on both of
Dougherty’s interference claims, for a simple reason: the documents produced by the parties in
the reply and surreply establish that Dougherty was ineligible for either FMLA or DC FMLA
leave as of January 1, 2016—and because Dougherty did not work any hours between January 1,
2016 and March 17, 2016, that he remained ineligible until his termination. After reviewing
Dougherty’s eligibility under the statutes, the Court briefly goes over Dougherty’s arguments as
to the designation of his March 2015 leave as FMLA leave and the retroactive designation of that
leave as DC FMLA leave, because those arguments arguably point to interference with
Dougherty’s exercise of his rights as to the March 2015 leave rather than the January 2016
request for leave. Finding those arguments meritless as well, the Court grants summary
judgment to CNN on Dougherty’s FMLA and DC FMLA claims.
employed by CNN, so it is unclear what “full duty” such a hypothetical note would allow him to
return to. And Dougherty was cleared to return to light duty in March 2016; by terminating him
while he was on leave, CNN therefore caused him a clear prejudice.
33
1. Dougherty Was Ineligible for FMLA Leave and DC FMLA Leave on January 4, 2016
The Court first reviews the parties’ arguments regarding Dougherty’s eligibility for
FMLA and DC FMLA Leave. In his opposition, Dougherty argues that, to the extent he was not
entitled to FMLA leave as of January 1, 2016, he was at a minimum entitled to such leave in
March 2016. See Pl.’s Opp’n 26. In response, CNN argues in its reply that Dougherty was
ineligible for FMLA leave as of March 2016 because he did not work enough hours with CNN
between March 8, 2015 and March 8, 2016 to qualify as an eligible employee. See Def.’s Reply
4 n.7; Supp. Ul-Haque Aff. ¶ 5. And in his surreply, Dougherty points to employment records
showing that he continued to be paid while he was on leave in 2015, suggesting that he worked
the required number of hours to be eligible. See Martin Dougherty Employee Earnings Record.
Based on the parties’ arguments and the evidence presented, the Court can only conclude that
Dougherty was ineligible for FMLA and DC FMLA leave not just as of March 2016, but as of
January 1, 2016 as well. Dougherty’s claims of interference with rights protected under the
FMLA and DC FMLA in connection with his request for leave on January 1, 2016 therefore fail
as a matter of law.
As discussed above, in order to be eligible under the FMLA an employee must 1)
“[h]a[ve] been employed by the employer for at least 12 months,” 29 C.F.R. § 825.110(a)(1), and
2) “ha[ve] been employed for at least 1,250 hours of service during the twelve-month period
immediately preceding the commencement of the leave.” Briscoe v. Costco Wholesale Corp., 61
F. Supp. 3d 78, 90–91 (D.D.C. 2014) (citing 29 C.F.R. § 825.110(a)(2)). “The determination of
whether an employee meets the hours of service requirement is made at the date the FMLA leave
is to start.” Id. (citing 29 C.F.R. § 825.110(d)). And the implementing regulations for the
FMLA provide that “whether an employee has worked the minimum 1,250 hours of service is
34
determined according to the principles established under the Fair Labor Standards Act (FLSA)
for determining compensable hours of work,” 29 C.F.R. § 825.110(c)(1) (citing 29 C.F.R. part
785); see also D.C. Mun. Reg. tit. 4, § 1603.3 (providing that the 1,000 hours requirement of the
DC FMLA is also calculated pursuant to FLSA eligibility principles). Particularly relevant here,
“Section 207 of the Fair Labor Standards Act . . . excludes from the calculation those hours when
no work is performed due to ‘vacation, holiday, illness, failure of the employer to provide
sufficient work, or other similar cause.’” Davis v. George Washington Univ., 26 F. Supp. 3d
103, 126 (D.D.C. 2014) (quoting 29 U.S.C. § 207(e)(2)).
Here, CNN argues that Dougherty worked only 217 hours for CNN between March 8,
2015 and March 8, 2016. Def.’s Reply 4 n.7; Supp. Ul-Haque Aff. ¶ 5. In response, Dougherty
points to another subsection of the regulations implementing the FMLA providing that, for
purposes of calculating the 12-month period an employee has been employed by the employer,
weeks of employment include weeks where an employee “is maintained on the payroll for any
part of a week, including any periods of paid or unpaid leave (sick, vacation) during which other
benefits or compensation are provided by the employer (e.g., workers' compensation, group
health plan benefits, etc.).” 29 C.F.R. § 825.110(b)(3); see Pl.’s Surreply 5. And Dougherty
points to employment records showing both that he received a salary, benefits, and that
deductions continued to be made to his earnings while he was on leave in 2015, suggesting that
he was maintained on the payroll during that period. See Martin Dougherty Employee Earnings
Record.
Dougherty’s argument is unpersuasive because it confuses the standards for calculating
the two elements of the test for FMLA eligibility: the 12-month employment period under
§ 825.110(a)(1), and the 1,250 hours of service under § 825.110(a)(2). The applicable regulation
35
indicates that, for purposes of determining whether an employee “has been employed by the
employer for at least 12 months,” 29 C.F.R. § 825.110(a)(1), any week the employee is
maintained on payroll is a week of employment, see id. § 825.110(b)(3). However, the
regulation also makes clear that the 1,250 hours requirement is calculated using FLSA eligibility
principles. See id. § 825.110(c)(1); Davis, 26 F. Supp. 3d at 126. And those principles establish
that hours spent on sick leave do not count as hours worked under the FLSA, and, by extension,
the FMLA. See Davis, 26 F. Supp. 3d at 126 (quoting 29 U.S.C. § 207(e)(2)). Instead, “an
employee must have ‘actually worked’ a minimum of 1250 hours” in order to be eligible under
the FMLA. Id. at 127 (quoting Plumley v. S. Container, Inc., 303 F.3d 364, 371–72 (1st Cir.
2002)).
Here, it is undisputed that Dougherty did not work while he was out on sick leave
between at least March 4, 2015 and November 23, 2015. See Dougherty Aff. ¶ 11 (asserting that
Dougherty was out on leave between March 2015 and December 2015); Ul-Haque Aff. ¶ 4
(asserting that Dougherty was on leave between March 4, 2015 and November 23, 2015). And,
Dougherty’s arguments to the contrary notwithstanding, see Pl.’s Surreply 3 n.6, the earnings
record he provided is somewhat consistent with CNN’s assertion that he only worked 217 hours
between March 8, 2015 and March 8, 2016. By Dougherty’s own calculations, he had worked
273.5 hours between the November 22, 2015 pay period and the January 3, 2016 pay period. See
Pl.’s Surreply 4. Because CNN has provided evidence that Dougherty worked less than 1,000
hours in the 12-month period preceding March 4, 2016, and because Dougherty does not dispute
that calculation besides incorrectly arguing that hours spent on sick leave count towards the
1,250 hours minimum for eligibility, the Court finds that Dougherty was ineligible under the
FMLA and DC FMLA as of March 4, 2016.
36
However, the earnings record provided by Dougherty also indicates that he did not work
enough hours to be eligible for FMLA or DC FMLA as of January 1, 2016. Because Dougherty
was injured on December 31, 2015 and went on leave immediately, he did not work any hours
between January 1, 2016 and March 8, 2016. Taking all inferences in Dougherty’s favor, and
using his calculations, Dougherty worked at most 273.5 hours between March 4, 2015 and
December 31, 2015. In order to make the 1,000 hours required for eligibility under the DC
FMLA as of January 1, 2016, see D.C. Code § 32-501(1), he would have to have worked at least
726.5 hours between January 1, 2015 and March 3, 2015. Similarly, meeting the 1,250 hours
requirement of the FMLA would require Dougherty to have worked 981.5 hours between
January 1, 2015 and March 3, 2015. The earnings record Dougherty provides unequivocally
indicates that he did not: between the January 4, 2015 and March 15, 2015 earning periods,
Dougherty worked, at most, a total of 651.5 hours. 11 Accordingly, Dougherty was not eligible
under either the FMLA or the DC FMLA as of January 1, 2016, and he cannot make out a prima
11
The earnings record includes several different codes for the hours for which Dougherty
was compensated. See Martin Dougherty Employee Earnings Record. Although Dougherty
attempts to explain what those codes stand for in his surreply, he does not provide an explanation
for every code. See Pl.’s Surreply 4 n.8. In determining the amount of hours Dougherty could at
most have worked, the Court added up every hour Dougherty was compensated for in each pay
period between January 4, 2015 and March 15, 2015, regardless of whether such hours may or
may not qualify as eligible hours under FLSA regulations. Under such a calculation, Dougherty
worked 128 hours in the January 4, 2015 pay period; 91 hours in the January 18, 2015 pay
period; 107.5 hours in the February 1, 2015 pay period; 114.5 hours in the February 15, 2015 pay
period; 117 hours in the March 1, 2015 pay period; and 93.5 hours in the March 15, 2015 pay
period; for a total of 651.5 hours.
Because the Court counted in this calculation hours paid that may not have been FLSA-
eligible, Dougherty’s total amount of hours worked during those pay periods is likely lower.
Additionally, earnings statements are often provided on a delayed basis, covering an employee’s
earnings for a time period ending a week or two prior to the date of the earnings statement. It is
therefore possible that hours covered under the January 4, 2015 pay period and March 15, 2015
pay period were not hours Dougherty worked between January 1, 2015 and March 3, 2015, thus
further reducing the number of hours he actually worked during that time.
37
facie case of interference with rights protected by either statute for the denial of leave he
requested starting on January 1, 2016.
2. CNN Did Not Improperly Designate Dougherty’s March 2015 Leave as FMLA Leave
Next, the Court addresses Dougherty’s argument that CNN’s designation of his March
2015 leave as FMLA leave without his consent was improper. According to Dougherty, his
failure to explicitly request FMLA leave when taking medical leave to undergo surgery in March
2015 was tantamount to a request not to use up his FMLA leave, which CNN should have
respected. See Pl.’s Opp’n 22–23 (citing Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236,
1243–44 (9th Cir. 2014)). Arguably, this argument points not just to interference with
Dougherty’s exercise of his FMLA rights in January 2016 (which the Court has already
determined fails because Dougherty was ineligible), but also to a claim of interference with
Dougherty’s exercise of his FMLA rights in March 2015, so the Court will address it. The Court
disagrees with Dougherty and finds that CNN’s designation of the leave as FMLA leave was not
improper.
A number of courts have found that employees are allowed to explicitly refuse to take
leave they would otherwise be entitled to under the FMLA. See, e.g., Escriba, 743 F.3d at 1244
(noting that “there are circumstances in which an employee might seek time off but not intend to
exercise his or her rights under the FMLA”); Gravel v. Costco Wholesale Corp., 230 F. Supp. 3d
430, 437 (E.D. Pa. 2017) (finding no FMLA violation when the plaintiff specifically elected not
to take FMLA leave, and thus was not protected under the act while on leave); Skrynnikov v.
FNMA, 226 F. Supp. 3d 26, 38 (D.D.C. 2017) (noting that plaintiff had properly indicated to
employer that he was not electing to take DC FMLA leave for rib injury and instead would use
vacation time). On the other hand, the Department of Labor indicated in a recent opinion letter
38
that it disagrees with Escriba and regards the FMLA as requiring employees to take FMLA-
qualifying leave, with no option to “use non-FMLA leave for an FMLA-qualifying reason.” U.S.
Dep’t of Labor Wage and Hour Division, Opinion Letter FMLA2019-1-A 2 n.3 (Mar. 14, 2019),
https://www.dol.gov/whd/opinion/FMLA/2019/2019_03_14_1A_FMLA.pdf.
The Court need not resolve this disagreement here, as the circumstances under which
Dougherty took his leave in March 2015 are far from those at issue in cases that have recognized
a right to decline to take FMLA leave. Unlike with the plaintiffs in Escriba, Gravel, and
Skrynnikov, there is no indication in the record here that Dougherty explicitly declined to take
FMLA leave. Instead, Dougherty informed CNN that he was taking medical leave to undergo
shoulder surgery in March 2015, see Dougherty Aff. ¶ 11, but “never told CNN that he wanted to
use his FMLA leave for the injuries he sustained,” Pl.’s Opp’n 23. According to Dougherty, this
failure to request FMLA leave means that “[i]n practice he declined to use his FMLA leave.” Id.
In other words, Dougherty would have the Court find that FMLA-qualifying leave never actually
qualifies under the FMLA unless the employee makes an explicit request for it—presumably
using the magic word “FMLA.” See id. at 23–24. The Court cannot so find. Reading the
FMLA this way would run contrary to the intent of the statute, by allowing employers to ignore
employees’ rights under the act as long as an employee does not make the required explicit
request. Here, because Dougherty informed his employer that he was taking extended leave for
an FMLA-qualifying reason, and did not indicate that he did not wish to take FMLA leave—or
that he wished to use alternative leave instead (e.g. sick leave or accrued vacation time)—the
Court has no trouble concluding that CNN rightfully designated the March 2015 leave as FMLA
leave.
39
3. Retroactively Designating Dougherty’s 2015 Leave as DC FMLA Leave Was Not Improper
Finally, the Court discusses whether CNN’s decision to retroactively designate
Dougherty’s March 2015 leave as DC FMLA leave was improper. As with the designation of
that leave as FMLA leave discussed above, this argument arguably points to a claim of
interference with Dougherty’s exercise of his DC FMLA rights in March 2015, and the Court
addresses it. As discussed above in Part II.B., CNN initially designated Dougherty’s March
2015 leave as FMLA leave only. See February 4, 2016 CNN HR E-Mail. CNN only realized
that Dougherty had also been qualified for DC FMLA leave at the time in February 2016, after
Dougherty again went on leave because of his knee injury. See id. While he does not
specifically argue the issue, Dougherty appears to believe that CNN’s subsequent retroactive
designation of his March 2015 leave as DC FMLA leave was improper. See Pl.’s Opp’n 22, 25.
The Court disagrees.
Regulations regarding the retroactive designation of FMLA leave are instructive.
Pursuant to 29 C.F.R. § 825.301(d), an employer “may retroactively designate leave as FMLA
leave with appropriate notice to the employee . . . provided that the employer’s failure to timely
designate leave does not cause harm or injury to the employee.” Id. And FMLA regulations also
provide that “if an employer that was put on notice that an employee needed FMLA leave failed
to designate the leave properly, but the employee’s own serious health condition prevented him
or her from returning to work during that time period regardless of the designation, an employee
may not be able to show that the employee suffered harm as a result of the employer’s action,”
which defeats any interference claim. Id. § 825.301(e).
Here, CNN retroactively designated Dougherty’s March 2015 leave as DC FMLA leave
upon realizing that he qualified for such leave as a D.C. employee. See February 4, 2016 CNN
40
HR E-mail. The failure to designate the leave as DC FMLA leave did not cause Dougherty harm
at the time, because he was able to stay out of work for much longer than the 16 weeks allowed
under the DC FMLA and was still able to return to work afterwards. See Dougherty Aff. ¶ 11
(noting medical leave between March 2015 and October 2015, over seven months). Although
Dougherty claims not to have received it, CNN sent him notice of the retroactive designation at
his home address. See Ul-Haque Aff. ¶ 10; 2016 FMLA Eligibility Letters; Dougherty Dep.
343:5–7, Def.’s Ex. B (acknowledging that Dougherty lives at the address the letters were sent
to). And even if the February 4, 2016 notice did not immediately reach him, Dougherty
acknowledges being forwarded the notice two weeks later. See id. at 363:6–15, Def.’s Ex. B.
Given the fact that Dougherty was not harmed by CNN’s failure to designate the leave in March
2015 and that the network properly informed him when it retroactively designated the leave, the
Court does not find that the retroactive designation was improper. And, finding that there is no
remaining dispute of material fact on Dougherty’s FMLA and DC FMLA interference claims,
the Court grants CNN’s motion for summary judgment on those claims.
D. CNN Is Entitled to Summary Judgment on Dougherty’s FMLA and DC FMLA
Retaliation Claims Because He Was Ineligible Under Either Statute
Finally, the Court addresses together Dougherty’s claims for retaliation under the FMLA
and DC FMLA. Dougherty argues that CNN retaliated against him by terminating him after he
requested FMLA leave and engaged in FMLA-protected activities. See Pl.’s Opp’n 27. CNN
contends that Dougherty’s retaliation claims must fail because he was ineligible under the FMLA
or DC FMLA during the time period for which he made his request. See Def.’s Mem. Supp. 12.
And CNN argues that it had a legitimate, non-retaliatory reason for terminating Dougherty. See
id. at 13. The Court agrees with CNN’s first argument, and accordingly does not reach CNN’s
asserted legitimate, non-retaliatory reason.
41
FMLA retaliation claims follow the McDonnell Douglas burden shifting-framework. See
Thomas, 227 F. Supp. 3d at 100. To make an FMLA retaliation claim, an employee must
accordingly first establish his prima facie case, by showing “(1) that he exercised rights afforded
by the [FMLA], (2) that he suffered an adverse employment action, and (3) that there was a
causal connection between the exercise of his rights and the adverse employment action.” Id. at
99 (quoting Roseboro v. Billington, 606 F. Supp. 2d 104, 109 (D.D.C. 2009)). The burden then
shifts to the employer to provide a legitimate, non-retaliatory reason for the adverse action. See
id. And once the employer has provided such a reason, “the ‘central question at summary
judgment becomes whether the employee produced sufficient evidence for a reasonable jury to
find that the employer’s asserted . . . non-retaliatory reason was not the actual reason and that the
employer intentionally . . . retaliated against the employee.’” Id. (quoting Walker v. Johnson,
798 F.3d 1085, 1092 (D.C. Cir. 2015)).
However, courts have generally recognized that, aside from very limited circumstances,
eligibility under the FMLA is a prerequisite to make an FMLA retaliation claim. 12 See, e.g., Hill
12
Some courts have held that an employee who is not yet eligible under the FMLA, but
who would be eligible at the time his proposed FMLA leave would start, is able to make an
FMLA retaliation or interference claim. See, e.g., Pereda v. Brookdale Senior Living Cmtys.,
Inc., 666 F.3d 1269, 1272–73 (11th Cir. 2012). Such an issue is not present here, where
Dougherty was ineligible at the time his proposed FMLA and DC FMLA leave would have
started on January 1, 2016.
In addition, “[w]hether entitlement to FMLA leave is actually an element of a retaliation
claim appears to be an open question of law.” Isley v. Aker Phila. Shipyard, Inc., 275 F. Supp.
3d 620, 634 (E.D. Pa. 2017). At least one court has found that an employee who is eligible for
FMLA leave but not entitled to such leave can still bring an FMLA retaliation claim. See
Johnson v. Dollar General, 880 F. Supp. 2d 967, 990–94 (N.D. Iowa 2012); see also McArdle v.
Town of Dracut, 732 F.3d 29, 36 (1st Cir. 2013) (declining to pronounce itself on the issue);
Wilkins v. Packerware Corp., 260 F. App’x 98, 102–03 (10th Cir. 2008) (same). But see, e.g.,
Morris v. Family Dollar Stores of Ohio, Inc., 320 F. App’x 330, 338 (6th Cir. 2009) (rejecting
FMLA retaliation claim when plaintiff did not request leave on account of serious health issue,
and thus was not entitled to FMLA leave in the first place); Russell v. N. Broward Hosp., 346
F.3d 1335, 1340 (11th Cir. 2003) (finding that “[i]nterference and retaliation claims both require
42
v. Walker, 737 F.3d 1209, 1215 (8th Cir. 2013) (finding that plaintiff who had worked at
employer less than 12 months could not make FMLA retaliation claim); Amsel v. Tex. Water
Dev. Bd., 464 F. App’x 395, 401 (5th Cir. 2012) (finding that ineligible employee could not
make out prima facie case of FMLA retaliation); Walker v. Elmore Cty. Bd. of Educ., 379 F.3d
1249, 1253 (11th Cir. 2004) (“We hold that the [FMLA] does not protect an attempt to exercise a
right that is not provided by FMLA, i.e., the right to leave before one becomes eligible
therefor.”). And here, the evidence undisputedly shows that Dougherty was neither eligible
under the FMLA nor under the DC FMLA at the time he made his request for medical leave.
Accordingly, the Court finds that his FMLA and DC FMLA retaliation claims fail as a matter of
law, and it grants CNN’s motion for summary judgment on those claims.
V. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment (ECF No. 28) is
GRANTED IN PART AND DENIED IN PART. Because the Court has now granted
summary judgment on both of Dougherty’s FMLA claims, there are no remaining federal claims
in this lawsuit. The Court therefore directs the parties to submit supplemental briefing on the
issue of whether it retains jurisdiction over Dougherty’s supplemental, D.C.-law claims. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: August 30, 2019 RUDOLPH CONTRERAS
United States District Judge
the employee to establish a ‘serious health condition”’). Other courts have acknowledged
Johnson’s “thorough and well-reasoned” rationale for allowing retaliation claim by employees
not entitled to FMLA leave, see Isley, 275 F. Supp. 3d at 634 n.17, and this Court finds it
persuasive as well. But again, here the evidence conclusively shows that Dougherty was
ineligible for FMLA leave, rather than not entitled to it, and the situation addressed in Johnson
does not apply to his situation.
43