Equal Employment Opportunity Commission v. Fox News Network, LLC , 806 F. Supp. 2d 128 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EQUAL EMPLOYMENT OPPORTUNITY )
COMMISSION, )
)
Plaintiff, )
) Civil Case N0. 10-1660 (RJL)
v. )
)
FOX NEWS NETWORK, LLC )
)
)
Defendant.
MEMoRANDiliM' oPINIoN
(Augusr@§ 2011) [#4]
Plaintiff Equal Employment Opportunity Commission ("EEOC” or "plaintiff")
brings this action on behalf of Catherine Herridge ("Herridge") against Fox News
Network, LLC ("Fox News" or "defendant"), alleging violations of Title VII of the Civil
Rights Act of 1964 ("Title VII"); Title I of the Civil Rights Act of 1991 ("Title I”), the
Equal Pay Act of 1963 ("the EPA"), and the Age Discrimination in Employment Act of
1967 ("ADEA"). Plaintiff, who alleges unlawful employment practices including
retaliation for protected activity, seeks ~ among other things - pecuniary damages,
punitive damages, and injunctive relief for Herridge. Before this Court is defendant’s
Motion to Dismiss For Failure to State a Claim Or, Alternatively, For Summary
Judgment ("Def.’s Mot. To Dismiss or for Summ. J."), Nov. 4, 2010 [Dkt. #4]. Upon
consideration of the parties’ pleadings, relevant law, and the entire record herein,
defendant’s Motion for Summary judgment is GRANTED.
BACKGROUND
I. Allegations of Discrimination
Catherine Herridge has been employed by Fox News as an on-air news reporter
since October l996, and has been an on-air reporter with the Washington Bureau since
2001. Declaration of Catherine Herridge ("Herridge Decl."), Nov. 19, 2010, 11 1 [Dkt.
#7-1]. Around July 2006, Herridge became concerned that Fox News would not honor its
agreement to give Herridge a "trial run" as anchor. Ia’. 11 2; Compl. 11 l0. According to
her Declaration, Herridge was "suspicious that [the agreement] was not being honored
because of [her] sex, female[,] and age, then 42." Herridge Decl. 11 2. Notwithstanding
these purported concerns, Fox News allowed Herridge a trial run as a weekend anchor
from approximately fall 2006 to fall 2007. Ia’. 11 5. At the end of her trial run, Herridge
was reassigned to her position as reporter. Ia’. The weekend anchor position was later
filled by a man. Id.
Around the time of her trial run as anchor, Herridge began lodging various
complaints with Fox News about its employment practices ~ some about her own
treatment and others about the alleged treatment of her peers.l See Herridge Decl. 11 3.
For example, around November 2006, Herridge "questioned" the then-D.C. Bureau Chief
about why less desirable shifts were routinely given to female and black correspondents.
Ia’.; Compl. 11 l0. Then, in January 2007, Herridge met with the CEO of Fox News and
‘ Herridge worked under a three-year contract with Fox News. At the time she
began complaining of discrimination, she was in the third year of her contract. Brandi
Aff. Ex. B,112.
expressed concern about the "unfair treatment of women in the Washington, D.C.
Bureau."z Herridge Decl. 11 4. Around December 2007, after her trial as anchor ended,
Herridge complained to the D.C. Bureau Chief that she had been demoted and that work
assignments were being taken away from her because of her age (then 43) and sex, and
because she had previously registered internal complaints about discrimination. Id. 11 6;
Compl.11 l0.
That same month, Herridge made similar complaints to Fox News’ Senior Vice
President for Legal and Business Affairs, Dianne Brandi ("Brandi"), alleging that her
reassignment to reporter was the result of age and sex discrimination. Herridge Decl. 11 6;
Compl. 11 l0. Brandi initiated an internal investigation around December 2007, Herridge
Decl. 11 7; Compl. 11 l l, and Herridge contacted Brandi about the status of the
investigation at various points throughout. Herridge Decl. 11 8; Compl. 11 ll (detailing
January 2008 communication and February 2008 e-mail). 3 The investigation lasted
'T
In addition, Herridge complained to Fox News’ CEO that her "trial run" was not
being honored because of her sex and age. Compl. 11 l0. See also Herridge Decl. 11 2
(detailing a similar concern expressed to the network in July 2006).
3 Plaintiff notes that the CEO of Fox News sent a company-wide e-mail one day
after Herridge e-mailed Brandi in February 2008. See Pl.’s Opp’n at 2-3. Because the e-
mail contrasted "those days [the early days of Fox]" with the "selfish complaining, petty
whining, and a desire to have what someone else has" of "today," z`d., Herridge alleges
that the e-mail was retaliatory ~ even though she was never mentioned in the e-mail. The
parties dispute whether this e-mail is or should be part of the record before this Court.
Defendant contends that the e-mail is "irrelevant" since Herridge did not claim that it was
materially adverse when she complained to the EEOC, and because the EEOC never
advised Fox News that the e-mail was part of the evidence examined during its
investigation (and thus did not provide Fox News with an opportunity to respond to it).
Def.’s Reply at l. Plaintiff, in contrast, maintains that it is not required to "cast a blind
eye" to evidence uncovered during the course of an investigation. Pl.’s Opp’n at 2 n. l.
3
approximately three months, until l\/Iarch 2008, at which point Brandi announced her
finding that there was no evidence of discrimination at Fox News. Herridge Decl. 11 9.
She also provided Herridge with a draft of her investigation report. Id. Herridge
responded by disputing the findings and renewing her complaint of discrimination. Ia’.;
Compl. 11 ll.
II. Contract Negotiations
Herridge’s three-year contract was set to expire in October 2008. Herridge Decl.
11 l0; see also Brandi Aff. Ex. B, 11 2 (three-year employment contract between Fox News
and Herridge from October 2005 to October 2008) [Dkt. #4-3].4 Since her contract was
up for renewal, Fox News sent Herridge a draft three-year employment contract in
August 2008. Herridge Decl. 11 lO; Compl. 11 l2. In the draft, Fox News proposed a deal
in which Herridge would receive $495,000 in year one; $530,000 in year two; and
$570,000 in year three. Brandi Aff. Ex. C, at 11 3. The proposal offered a raise from year
three of the 2005-2008 contract to year one in the 2008-2011 contract, and a raise in each
of the three years of the new contract. See z'a'.
Although the proposed contract language was similar to that contained in
Herridge’s 2005-2008 contract, Herridge Decl. 11 l0; Compl. 11 12, it included two notable
changes. First, the proposed contract stated that "[p]erfomier agrees that she will not
As explained more fully inj?”a, Section II.B, this discrepancy is not material to the
outcome of this case because plaintiff does not prove the injury required to prevail on a
charge of retaliation. As a result, this Court need not - and thus will not - characterize or
make factual findings about the CEC)’S e-mail, beyond mentioning its existence.
4 Under the terms of the 2005-2008 contract, Herridge was paid $400,000 in year
one; $430,000 in year two; and $460,000 in year three. Brandi Aff. Ex. B, 11 3.
4
serve as an anchor/co-anchor, or an occasional anchor/co-anchor during the Term hereof,
unless Fox, in its sole cliscretz`orz, decides otherwise." Brandi Aff. Ex. C, at l; Herridge
Decl. 11 10; Compl. 1 12 (emphasis added). ln contrast, the 2005-2008 contract stated that
"[p]erformer may become a permanent, regular anchor during the 'l`erm, at Fox ’s sole
discretz`on." Brandi Aff. Ex. B, at l n.l (emphasis added). Second, Fox memorialized
the interactions between Herridge and the network with respect to Herridge’s complaints
of discrimination:
Both Performer and Fox acknowledge that Performer has
raised allegations of discrimination in the past concerning her
non-assignment to anchor positions and concerning other
matters, and that Fox has investigated Performer’s
allegations. Performer and Fox also acknowledge that Fox
has determined that discrimination did not occur and that
Performer does not agree with Fox’s determination.
Brandi Aff. Ex. C, at l; Herridge Decl. 11 l0; Compl. 11 12. Through her agent, Herridge
rejected the proposal on August l5, 2008. Herridge Decl. 11 ll; Compl. 11 l3. She
countered with an offer of $621,000 in year one; $714,150 in year two; and $821,272 in
year three, and then proposed a two-year extension to the tune of $903,3 39 in year four
and $993,739 in year five. Def.’s Mot. To Dismiss or for Summ. J. at 3-4; Brandi Aff.
Ex. D. Suffice it to say that the August offer and counter-offer were the first in a
protracted series of salary negotiations. Herridge Decl. 11 13; Compl. 11 13; Def.’s Mot.
To Dismiss or for Summ. J. at 4-5.
When the dust had finally settled, Fox News held steady on its initial offer with a
year-one salary of $495,000, while Herridge made (and Fox News rejected) counter
offers with year-one salaries of $621,000; $900,000; $720,000; and $515,000,
5
respectively. See Brandi Aff. Exs. D, E, I, and J. But because Herridge’s 2005-2008
contract specifically contemplated extra-contractual performance after the expiration of
the current contract term,$ see Brandi Aff. Ex. B, 11 10, Fox News paid Herridge her then-
current salary ($460,000) and benefits for the duration of her negotiations with Fox
News, even after her 2005-2008 contract expired. Ia'.; see also Fox News’ Reply
Memorandum ("Def.’s Reply") at 6, Nov. 29, 2010 [Dkt. #8].
A number of salient events, however, occurred during the parties’ negotiations.
Unbeknownst to Fox News, Herridge filed an EEOC complaint on September 16, 2008.
Herridge Decl. 11 12; Compl. 11 14; Def.’s Mot. To Dismiss or for Summ. J. at 4. One day
later, when Fox News rejected Herridge’s counter of a five-year contract starting at
$900,000, the company informed Herridge’s agent that she was already "the highest-paid
reporter in the D.C. Bureau." Brandi Aff. Ex. F. Months later, according to Herridge, the
D.C. Bureau Manager gave her a written "final warning" which Herridge says was issued
after she "questioned why [her] news reporting was given to a male [c]orrespondent to
broadcast on the network as his own work." Herridge Decl. 11 15 (detailing January 2009
"warning"). Then, in an e-mail exchange between the parties in February 2009, Fox
News informed Herridge’s agent that "Fox News does not employ any reporters with
five-year contracts" and that it did "not intend to make an exception for [Herridge]."
Brandi Aff. Ex. 1. In March 2009, Herridge’s agent retreated from five-year counter-
5 The contract reads: "In the event that Performer continues rendering services for
Fox following the expiration of the Term hereof, Perforrner shall continue to be paid her
weekly compensation at her then-current rate." Brandi Aff. Ex. B 11 l0.
6
offers to a three-year counter-offer. See Brandi Aff. Ex. J. Fox News removed the
disputed language from Herridge’s contract in May 2009. Herridge Decl. 11 14.
On June l8, 2009, Fox News and Herridge entered into a new three-year contract.
Herridge Decl. 11 14; Compl. 11 14. The disputed language was not included in the final
contract, and the salary terms were the same as those offered in Fox News’ original
August 2008 proposal. Herridge Decl. 11 14; Compl. 11 14. In addition, Herridge’s salary
increase in year one of the new contract was made retroactive and she was paid the
increase for the nine months of extra-contractual performance rendered. See Herridge
Decl. 11 16; Compl.11 15; Def.’s Mot. To Dismiss or for Summ. J. at ll.
III. EEOC Complaint
On March 31, 2010, the EEOC issued a Deterrnination about the complaint
Herridge filed in September 2008. Brandi Aff. Ex. L, at 1 (Mar. 31, 2010 EEOC
Determination). After a lengthy investigation, it determined that there was "insufficient
evidence to establish a violation of the statutes" with respect to Herridge’s allegations
that "she was demoted, denied equal wages, denied assignments, and denied promotion
based on her sex, age, or in retaliation, or that a class of individuals was discriminatorily
denied promotions." Brandi Aff. Ex. L, at 2; Def.’s Mot. To Dismiss or for Summ. J. at
5. However, the EEOC did conclude that its investigation "support[ed] a finding that
[Fox News] retaliated against [Herridge], in violation of Title VII, the EPA, and the
ADEA, because [Herridge] opposed discrimination." Def.’s Mot. To Dismiss or for
Summ. J. at 5-6; Brandi Aff. Ex. L, at l. To support its finding that Fox News’ actions
were "reasonably likely to deter employees from exercising their right to oppose
7
discrimination," the EEOC cited the proposed language6 referencing Herridge’s
discrimination allegations which was included in her draft - but not final - contract.
Brandi Aff. Ex. L, at 1.7 The EEOC then brought this suit against Fox News.
ANALYSIS
I. Standard of RevieW
Because the Court must rely in part on evidence outside of the pleadingsg to
address plaintiff s retaliation claim, defendant’s Motion to Dismiss will be converted to
one for summary judgment. Fed. R. Civ. P. l2(d); see also Martz'n v. Locke, 659 F. Supp.
2d 140, 144-45 (D.D.C. 2009) (converting a motion to dismiss into one for summary
judgment). Summary judgment is appropriate when there is "no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a).9 A party opposing summary judgment "may not rest upon the mere allegations .
6 The EEOC also cited as evidence the CEO’S "company-wide e-mail discouraging
employee complaints." Brandi Aff. Ex. L, at 1.
7 Although the EEOC concluded that the new, proposed language "contributed to
the delay in contract negotiations, which resulted in [Herridge] working without an
employment contract and being denied full wages," Brandi Aff. Ex. L, at 1, the EEGC
later acknowledged that Herridge’s "wage increase was made retroactive." Def.’s Mot.
To Dismiss or for Summ. J. at 5; Brandi Aff. Ex. M, at 2.
3 As defendant explains, Exhibits B, C, G, K, L, and M may be considered on a
motion to dismiss because they are incorporated into the complaint, central to the claims
presented in the complaint, or matters of which the Court may take judicial notice. Def.’s
Mot. To Dismiss or for Summ. J. at 7; see also EEOC v. St. Franez`s Xavier Parochz`al
School, 117 F.3d 621, 624 (D.C. Cir. 1997). Relying on Exhibits D, E, F, H, I, and J
require conversion of the Motion to Dismiss into one for summary judgment
° A dispute about a material fact is genuine only when "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anclerson v. Lz'berly
Lobby, Inc., 477 U,S. 242, 248 (1986).
. . of his pleading, but must set forth specific facts showing that there is a genuine issue
for trial.” Ana'erson v. Lil)erly Lobby, Inc., 477 U.S. 242, 256 (1986) (citing Fed. R. Civ.
P. 56(e)). lf and when the nonmoving party offers evidence in response to the motion,
that evidence "is to be believed, and all justifiable inferences are to be drawn in [the non-
movant’s] favor." Anderson, 477 U.S. at 255 (internal citation omitted).
II. The EEOC Does Not Establish a Prima Facie Case of Retaliation.
A. Elements
Under Title VII, it is "an unlawful employment practice for an employer to
discriminate against any of his employees . . . because [s]he has opposed any practice
made an unlawful employment practice by [Title VII], or because [s]he has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding,
or hearing under[Title Vll]." 42 U.S.C. § 2000e-3(a) (2006).
To establish a prima facie case of retaliation under 'l`itle Vll, a plaintiff must show
that she (1) "engaged in statutorily protected activity; (2) that [s]he suffered a materially
adverse action by h[er] employer; and (3) that a causal link connects the two." Gaujacq
v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010) (internal citation omitted). lmportantly,
a plaintiff must show that "a reasonable employee would have found the challenged
action materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination." Burlz`ngton
Nortlzem & Santa Fe Ry. Co. v. Wlzz`te, 548 U.S. 53, 68 (2006) (intemal citations and
quotations omitted). Title VII, therefore, does not protect against all retaliation, but
rather "from retaliation that produces an injury or harm." 1a’. at 67. Critical to the
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Court’s evaluation of injury is the "reasonable employee" paradigm: an objective
standard which "avoids . . . a plaintiff’ s unusual subjective feelings." Id. at 68-69.
If the plaintiff makes a prima facie showing of retaliation,
the burden shifts to the employer to produce a legitimate,
nondiscriminatory reason for its actions. If the employer does
so, the burden-shifting framework disappears, and a court
reviewing summary judgment looks to whether a reasonable
jury could infer retaliation from all the evidence, which
includes not only the [prz`ma facz'e] case but also the evidence
the plaintiff offers to attack the employer’s proffered
explanation for its action and other evidence of retaliation.
Gaujacq, 601 F.3d at 577.
Finally, "[c]ontext matters." Burlz`ngton, 548 U.S. at 69. That is, "[t]he real social
impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships which are not fully captured by a simple
recitation of the words used or the physical acts performed." Ia’. (internal citation and
quotation omitted).
B. Herridge Did Not Suffer Injury Sufficient to Constitute a Materially
Adverse Action.
As an initial matter, defendant argues that the primary instance of retaliation
plaintiff alleges - the inclusion of language in Herridge’s draft (but not final) contract do-
cumenting Herridge’s discrimination complaints, was not retaliatory on its face. Def.’s
Mot. To Dismiss or for Summ. J. at 10; see also Compl. 11 13. Defendant contends that
the "neutral" and "completely true" language simply memorialized the circumstances
surrounding contract negotiations between Fox News and Herridge. Def.’s Mot. To
Dismiss or for Summ. J. at l0. Drawing all inferences in favor of the nonmoving party,
10
however, the Court credits plaintiff’s allegation that the proposed language constituted an
adverse action since it was placed in Herridge’s proposed contract because of her
previous complaints, and was "intended . . . to dissuade Herridge from making further
complaints of employment discrimination." Compl. 11 13 (calling the language
"retaliatory").
However, even assuming arguendo that the proposed language did constitute an
adverse action,m defendant contends that plaintiff cannot prove that it was materially
adverse such that it caused injury: an element necessary to make a prima facie case of
retaliation.ll Plaintiff responds by alleging two types of injury: financial and emotional.
Unf`ortunately for plaintiff, neither alleged harm is sufficient to constitute a materially
adverse action. How so?
1. Plaintiff Does Not Prove Financial Injury.
Plaintiff contends that because the proposed contract language was retaliatory, and
‘° lt is worth noting that Fox News offered Herridge the draft contract, which
included the language at issue, after Herridge aired internal complaints, but more than
one month before Herridge filed an EEOC complaint. Compare Brandi Aff. Ex. C (Aug.
6, 2008 initial proposed contract), with Brandi Aff. Ex. G (EEOC complaint signed Sept.
16, 2008). Moreover, Fox News was not aware that Herridge filed an EEOC complaint
until well after the date of filing. Def.’s Mot. To Dismiss or for Summ. J. at 4. These
facts undercut plaintiffs claim that the language was retaliatory.
" There is little question that plaintiff can establish the first element: that Herridge
engaged in a protected activity by complaining about age and sex discrimination. The
second-prong inquiry into whether the language was a materially adverse action is also
critical to the third prong: causal connection between the protected activity and the
materially adverse action. Even if plaintiff could establish a causal connection between
Herridge’s complaints and Fox’s actions, the connection is meaningless if the action is
not materially adverse, and thus causes no injury.
ll
because Herridge refused to sign a contract containing such language, Compl. 1 13, the
presence of that language in the draft contract stalled negotiations and caused Herridge’s
financial detriment. Plaintiff` s Motion in Opposition to Fox News’ Mot. To Dismiss, Or
in the Alternative, For Summary Judgment ("Pl.’s Opp’n") at 10-ll [Dkt. #7]. Spe-
cifically, plaintiff alleges that Herridge was temporarily denied a salary increase; was
denied interest on that salary increase; and suffered "lost opportunity cost associated with
the nine[-]month delay in payment." Id. at ll, 15.'2
But because plaintiff does not show how these allegations rise to the level of
material adversity, its argument is unavailing. lndeed, even if including the language
were adverse, plaintiff fails to demonstrate how proposed language included in a
confidential draft contract, which is later removed from the final contract, would even be
publicly known, let alone how it would "dissuade[] a reasonable worker from making or
supporting a charge of discrimination." Burlington, 548 U.S. at 68 (internal quotation
omitted). This is especially true in light of the final contract, which provided raises for
Herridge from the last year of her old contract to the first year of her new contract, and in
each of the remaining years of the three-year contract.
More importantly, however, plaintiff utterly fails to prove financial injury.
Despite complaints of "delayed" payment, plaintiff offers no evidence that Herridge was
’2 Contrary to plaintiffs suggestion, see Pl.’s Opp’n at l5, Herridge’s retroactive
salary payment cannot fairly be characterized as "back pay" since she was being paid her
then-current rate in accordance with the 2005-2008 contract. See Def.’s Reply at 8.
Plaintiff offers no authority to suggest otherwise.
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entitled to retroactive payment of a salary increase.m And with good reason: although
Herridge’s 2005-2008 contract specifically contemplated payment for extra-contractual
work, it explicitly set her post-contractual compensation "at her then-current rate" - a
sum Fox News indisputably paid throughout the duration of Herridge’s contract
negotiations. Brandi Aff. Ex. B, 11 10; see also Def.’s Reply at 6 n.2. Neither Herridge’s
2005-2008 contract, nor her 2008-2011 contract, required retroactive payment of a
subsequent salary increase. See Def.’s Reply at 6. To that end, Fox News’ voluntary,
retroactive payment of Herridge’s raise can only be characterized as a financial benefit to
her.
Similarly, plaintiff cannot and does not establish that failure to receive interest on
Herridge’s retroactive salary payment - a payment not required by contract or any other
authority - injured Herridge. Whereas the 2005-2008 contract specifically contemplated
continued salary payment for extra services rendered, neither the 2005-2008 contract nor
the 2008-2011 contract mentioned interest payments. Simply put, plaintiff offers no
evidence that Fox News was obligated, contractually or otherwise, to pay Herridge’s raise
- much less interest - retroactively, and thus plaintiff does not demonstrate how Herridge
is injured by the absence of interest payments. In short, no juror could find that
Herridge’s alleged financial harms constitute a materially adverse action which would
'3 Even if Herridge were contractually entitled to a retroactive salary increase, the
alleged delay in payment is legally insufficient to establish injury. See Dz`ggs v. Potter,
700 F. Supp. 2d 20, 44 (D.D.C. 2010) ("It is well settled in this Circuit that ‘absent some
consequential harm or injury, a delay does not affect the terms, conditions or privileges of
employment and does not constitute an adverse employment action."’) (internal citations
omitted).
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dissuade a reasonable employee from engaging in a protected activity. lndeed, it is hard
to imagine how a reasonable employee would be dissuaded from engaging in protected
activity if that employee were still able to secure not only a multi-year employment
contract, but also a multi-year raise!
2. Plaintiff Does Not Prove Injury Resulting From Emotional Distress.
Plaintiff also argues that Herridge suffered emotional distress during contract
negotiations because of the "‘constant[] . . . fear of being discharged, losing her livelihood
and losing her medical insurance benefits." Compl. 11 15; see also Pl.’s Opp’n at 14-15.
Emotional distress and other purely subjective injuries, however, have been consistently
rejected in our Circuit as legally sufficient to constitute a materially adverse action, and
thus Herridge’s alleged injuries are no different here. See, e.g., T otten v. Norton, 421 F.
Supp. 2d 115, 121 (D.D.C. 2006) ("Courts in this Circuit . . . have held that purely
psychic injuries such as embarrassment do not qualify as adverse actions for purposes of
federal anti-discrimination statutes.") (internal citations omitted); Johnson v. Bolden, 699
F. Supp. 2d 295, 299-300 (D.D.C. 2010) ("()ur Circuit has made clear that the harm must
be ‘objectively tangible’ rather than ‘purely subjective injuries’ . . . not everything that
makes an employee unhappy is an actionable adverse action.") (citations omitted).'l
ln short, after a close examination of the record, l also conclude that no juror could
find that Herridge’s alleged harms would constitute a materially adverse action in the
'* Moreover, by citing Herridge’s personal fears with respect to her child’s unique
healthcare needs, plaintiff asks this Court to contravene legal standards and ignore the
"reasonable employee" standard which "avoids . . . a plaintiffs unusual subjective
feelings." Burlington, 548 U.S, at 68-69. l disagree.
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mind of a reasonable employee.
C. Even If The Proposed Language Were Retaliatory, Fox News Prevails By
Offering a Legitimate, Nondiscriminatory Reason For The Length of
Contract Negotiations.
Assuming for the sake of argument that the EEOC could establish a prima facie
case of retaliation, and thus shift the burden to Fox news to "produce a legitimate,
nondiscriminatory reason for its actions," the EEOC still would not prevail. Gaujacq,
601 F.3d at 577 (internal citation omitted). Plaintiff contends that the singular cause of
protracted contract negotiations was the retaliatory language included in Herridge’s draft
contract and her consequent refusal to sign any contract containing such language. See
Pl.’s Opp’n at 1 l, 15 n.5. But that assertion is rebutted by more than ample evidence in
the record.
lndeed, Herridge’s own agent revealed an additional and (apparently) even
weightier motive for stalling their negotiations: money! In a September 2008 e-mail to
Brandi, Herridge’s agent stated: "Perhaps we should focus on the compensation, as this
piece of the negotiation holds the key to its success or failure - in fact, agreement on an
equitable number for [Herridge’s] services can pave the way for a rapid resolution to the
other outstanding issues." Brandi Aff. Ex. E (emphasis added).
To that end, an objective evaluation of Herridge’s salary negotiations supports Fox
News’ assertion that "bewildering salary demands were the primary reason for the delay
in reaching a new Agreement." Def.’s Reply at 7; see also Def.’s Mot. To Dismiss or for
Summ. J. at 14, 16. ln response to Fox News’ year-one offer of $495,000, Herridge’s
salary demands escalated from $621,000 to $900,000 and down to $720,000 and
15
$515_,000 before accepting Fox News’ original offer of $495,000. These requests are
particularly puzzling in light of record evidence demonstrating Fox News’ resistance to
Herridge’s demands for hefty salary increases and for contracts whose terms deviated
from Fox News’ standard contract. See, e.g., Brandi Aff. Ex. F ("Notwithstanding that
[Herridge] is currently the highest-paid reporter in the D.C. bureau, you asked for a 35%
increase in her salary in year 1 . . . [Fox News] was not prepared to offer [Herridge]
anything close to a 35% raise in year l."); ia’. ("lnstead of lowering your proposal
concerning Catherine’s annual salary, you raised it to $900,000 a year, a 95% increase
over her current salary."); id. ("lf you wish to have a serious negotiation . . . l suggest that
you and [Herridge] become more realistic."); Brandi Aff. Ex. l ("Fox News does not
employ any reporters with five-year contracts . . . . [Herridge] is already the highest-paid
reporter in the D.C. Bureau."). Even more baffling is Herridge’s decision to jump from a
request of $621,000 (already $126,000 higher than Fox News’ initial offer), to a request
of $900,000 within one month of negotiations. Herridge’s astronomical salary requests,
coupled with Fox News’ unequivocal position that such requests were unworkable, easily
satisfies Fox News’ burden to produce a "legitimate, nondiscriminatory reason for its
actions" - here, for the delay in salary negotiations. See Gaujacq, 601 F.3d at 577.
Herridge’s allegations of retaliation, and her eagerness to blame Fox News for delays in
salary negotiations, are belied by the persistent and unfeasible demands detailed in the
record. Accordingly, a reasonable jury could not infer retaliation from the record and
plaintiff’s claims must be dismissed.
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CONCLUSION
F or all of the foregoing reasons, the Court GRANTS defendant’s Motion for
Summary Judgment [Dkt. #41. An order consistent with this decision accompanies this
l\/lemorandum Opinion.
RICHARD J L N
United States District Judge
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