RUDOLPH CONTRERAS, United States District Judge.
Plaintiff Martin Dougherty brings this suit against Defendant Cable News Network ("CNN") for multiple violations of the D.C. Human Rights Act ("DCHRA"), D.C. Code §§ 2-1401.01 to -1404.04, interference with and retaliation for exercising his rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-54, and the D.C. Family and Medical Leave Act ("DC FMLA"), D.C. Code §§ 32-501-17, as well as breach of contract and violation of the D.C. Wage Payment and Wage Collection Law, D.C. Code § 32-1301-12. Dougherty, a photojournalist employed by CNN between 1998 and 2016, alleges that the company refused to give him medical leave or to otherwise accommodate him after he suffered a knee injury in December 2015, and instead unlawfully terminated him and replaced his position.
CNN has now moved for summary judgment on all claims. The Court first dismisses Dougherty's breach of contract and wage claims, which he has voluntarily withdrawn. Because CNN has not shown that Dougherty was unable to perform the essential functions of the photojournalist position, and because there remains a genuine issue of material fact as to whether CNN's asserted legitimate, non-discriminatory reason for his termination was pretextual, the Court denies the motion for summary judgment as to Dougherty's DCHRA claims. And finally, finding that Dougherty was not eligible for either FMLA or DC FMLA leave at any point between January 1, 2016 and March 17, 2016, the Court grants CNN's motion for summary judgment as to Dougherty's FMLA and DC FMLA interference and retaliation claims. The Court accordingly grants in part and denies in part CNN's motion for summary judgment. Having granted summary judgment on all federal claims, the Court directs the parties to provide supplemental briefing on the issue of whether it retains jurisdiction to adjudicate Dougherty's state law claims.
A 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.
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.
Dougherty is a 56-year old photojournalist who joined CNN in 1998. Dougherty Aff. ¶¶ 1-2, Pl.'s Opp'n Mot. Dismiss Ex. 48, ECF No. 36-49. During the course of his almost twenty-year career at the network, Dougherty was injured on a number of occasions, resulting in multiple surgeries. Dougherty had two knee surgeries in 2008, following which he was able to return to work on lighter duty in order to allow him to slowly get back to full working condition. Id. ¶ 7. In 2010, Dougherty had right foot surgery, after which he was again "reintegrated ... depending on [his] physical limitations" by CNN. Id. ¶ 8. However, after shoulder and neck injuries in 2012 and 2013, Dougherty contends that CNN was less understanding, refusing to accommodate work restrictions or to fully cover his disability and medical costs. Id. ¶¶ 9-10.
In December 2014, Dougherty injured his right shoulder again. Id. ¶ 11. Dougherty took medical leave on March 4, 2015 to undergo rotator cuff surgery. Id.; Ul-Haque Aff. ¶ 4, Def.'s Mot. Summ. J. Ex. H, ECF No. 28-8. While Dougherty was on leave for the surgery, CNN sent him multiple letters informing him that his leave qualified under the FMLA and that the FMLA leave would be exhausted on May 31, 2015. Ul-Haque Aff. ¶ 5; 2015 FMLA Leave Eligibility Letters, Ul-Haque Aff. Ex. 1. Dougherty claims that he never received the letters. Dougherty Aff. ¶ 21. Dougherty also claims that his supervisor at the time, Doug Schantz, told him that he could only return to work once he was cleared for "full duty." Id. ¶ 11. Dougherty returned to work at some point between the end of November and the beginning of December. Compare Dougherty Aff. ¶ 11 (claiming that Dougherty returned on December 3rd or 7th) with Ul-Haque Aff. ¶ 4 (noting that Dougherty was on leave between March 4, 2015 and November 23, 2015).
Dougherty's doctor, Jonas Rudzki, prescribed a list of equipment that would help alleviate future strain on Dougherty's shoulder, which Dougherty then provided to CNN. Dougherty Aff. ¶ 11; Nov. 18, 2015 Prescription, Pl.'s Opp'n Mot. Summ. J. Ex. 35, ECF No. 36-36. Rudzki noted in his deposition that when trying to determine what accommodations are reasonable for a patient, he listens to the patient's proposed accommodation and determines for himself whether such accommodation is
On December 31, 2015, Dougerty injured himself on the job again. Dougherty Aff. ¶ 14. As Dougherty was stepping out of his CNN-provided vehicle after a shoot, his foot missed the car's running board and he landed on his left leg, dislocating his knee. Id. On January 5, 2016, Rudzki evaluated Dougherty and determined that he was totally incapacitated. Id. ¶ 16. Rudzki evaluated Dougherty again on January 11, determining that he would be fully incapacitated for eight weeks, with the injury to be re-assessed in six to eight weeks. Id. ¶ 17. Dougherty then informed Schantz and Oliver Janney, CNN's senior field production supervisor, of the injury. Id. Between January and February 2016, CNN sent multiple letters to Dougherty informing him that he had exhausted his FMLA leave. Ul-Haque Aff. ¶ 10. Dougherty represents that he did not receive those letters. Dougherty Aff. ¶ 21. On February 4, 2016, after determining that Dougherty had been entitled to DC FMLA at the time of his March 2015 leave for shoulder surgery, CNN elected to retroactively apply his DC FMLA leave to March 2015. See February 4, 2016 CNN HR E-Mail, Pl.'s Opp'n Mot. Summ. J. Ex. 25, ECF No. 36-26. CNN claims to have sent Dougherty an updated eligibility letter as a result, see Ul-Haque Aff. ¶ 10; 2016 FMLA Eligibility Letters, Ul-Haque Aff. Ex. 2, which Dougherty also claims not to have received, Dougherty Aff. ¶ 21.
By February 5, 2016, CNN determined that it would backfill Dougherty's position instead of waiting for him to return from leave. See Feb. 5, 2016 CNN HR E-Mail, Pl.'s Opp'n Mot. Summ. J. Ex. 26, ECF No. 36-27. A job posting was prepared on February 8, see Feb. 8, 2016 CNN HR E-Mail, Pl.'s Mot. Summ. J. Ex. 27, ECF No. 36-28, and on February 10, 2016, CNN sent Dougherty a letter formally informing him that the company would take steps to fill his position and was unable to guarantee that any position would be available for him after he returned from leave, see Feb. 10, 2016 Letter from CNN to Martin Dougherty, Pl.'s Opp'n Mot. Summ. J. Ex. 31, ECF No. 36-32. The letter indicated that Dougherty's position would have to be filled "[i]n order to meet pressing business and operational needs moving forward." Id. Separately, CNN HR prepared talking points to give CNN staff and Dougherty regarding his termination. See Feb. 10, 2016 CNN HR E-Mail, Pl.'s Opp'n Mot. Summ. J. Ex. 29, ECF No. 36-30. The talking points mentioned that Dougherty's replacement was due to the particularly high demands of the 2016 political season, with a "business justification" portion noting that CNN "plan[ned] to up-staff with temporary photojournalists in order to alleviate the strain of political coverage." Id.
After Dougherty received CNN's February 10, 2016 letter, he claims that he reached out to both Schantz and his other supervisor at the time, Jeffrey Kinney. Dougherty Aff. ¶¶ 22-23. According to Dougherty, Schantz informed him that he could not return to work unless he had no restrictions and was "100% healed." Id.
Following his ADA request, Dougherty again visited Rudzki, who cleared him to return to light-duty. Id. ¶ 28. In connection with clearing Dougherty's return to light-duty, Rudzki again issued a prescription for Dougherty to be provided with a monopod, EasyRig system, and quick release plate. Feb. 19, 2016 Prescription, Pl.'s Opp'n Mot. Summ. J. Ex. 36, ECF No. 36-37. On February 22, 2016, Rudzki provided a more detailed list of the restrictions and accommodations Dougherty would need for a return to light duty, including that he be "[a]ble to work the Crew/Slot assignment desk," that he "avoid, for now, carrying equipment downstairs," and that he "[f]or now avoid running or walking with camera while shooting." Feb. 22, 2016 Prescription, Pl.'s Opp'n Mot. Summ. J. Ex. 44, ECF No. 36-45. Rudzki indicated that Dougherty would be expected to be on light duty for about eight weeks. See Feb. 19, 2016 Prescription 2. Dougherty forwarded the documents from Rudzki to CNN, see Def.'s SMF ¶¶ 34, 38, and CNN indicated that the proposed accommodations would be discussed with Dougherty's management team, see id. ¶¶ 37, 39. According to Dumond, at a meeting with Kinney, Schantz, and John Courtney—another CNN employee who provided executive oversight for photojournalists in DC— it was determined that Dougherty could not perform the essential functions of his
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.
Dougherty filed an administrative complaint with the Equal Employment Opportunity Commission on March 14, 2016. Am. Compl. ¶ 5, ECF No. 10. On March 15, 2017, he sued CNN in D.C. Superior Court. See Compl., Def.'s Notice of Removal Ex. 1, ECF No. 1-1. After CNN removed the case to this Court, see Def.'s Notice of Removal, ECF No. 1, Dougherty filed the operative amended complaint on July 7, 2017. See Am. Compl. In the amended complaint, Dougherty brings ten claims altogether. See id. ¶¶ 104-182. Dougherty's first four claims are for interference with, and retaliation for exercising, his rights under both the FMLA and DC FMLA. See id. ¶¶ 104-19; 167-82. Next, Dougherty brings four claims under the DCHRA, for disability and age discrimination, failure to accommodate, and retaliation. See id. ¶¶ 120-59. Finally, Dougherty brings claims for breach of contract and violation of the D.C. Wage Payment and Wage Collection Act. See id. ¶¶ 160-66. CNN filed its answer on July 13, 2017. See Answer, ECF No. 11. On January 15, 2019, the network moved for summary judgment. See Def.'s Mem. Supp. Summ. J., ECF No. 28. Dougherty filed his opposition on March 18, 2019, see Pl.'s Opp'n Mot. Summ. J., ECF No. 36-2, and CNN filed its reply on April 8, 2019, see Def.'s Reply Supp. Summ. J., ECF No. 44. On August 7, 2019, Dougherty filed a surreply. See Pl.'s Surreply, ECF No. 46. On August 16, 2019, CNN filed a response to the surreply. See Def.'s Resp. Surreply, ECF No. 47.
A court may grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A "material" fact is one capable of affecting the substantive outcome of the litigation.
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548. 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, 106 S.Ct. 2548. 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, 106 S.Ct. 2505. 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).
CNN has moved for summary judgment on all claims. As an initial matter, the Court dismisses Dougherty's breach of contract and wage claims because he withdrew those claims in his opposition. See Pl.'s Opp'n 7. Given the late stage in this litigation and Dougherty's decision to voluntarily dismiss the claims after CNN filed its motion for summary judgment, the Court dismisses the claims with prejudice pursuant to Fed. R. Civ. P. 41(a)(2). See id. (providing for dismissal "at the plaintiff's request only by court order, on terms that the court considers proper"); see also, e.g., Markowicz v. Johnson, 206 F.Supp.3d 158, 168 (D.D.C. 2016) (dismissing claim with prejudice pursuant to Rule 41 when plaintiff withdrew it in opposition to summary judgment motion). The Court denies as moot CNN's motion for summary judgment on those two claims.
Moving on to Dougherty's remaining live claims, the Court grants CNN's motion for summary judgment in part and denies it in part. The Court first addresses Dougherty's DCHRA claim for failure to accommodate; before reviewing together his disability discrimination, age discrimination, and retaliation claims under the DCHRA; then the FMLA and DCFMLA interference claims; and finally the FMLA and DCFMLA retaliation claims. Because there is a genuine issue of material fact as to whether Dougherty could undertake the essential functions of the photojournalist position, the Court denies CNN's motion for summary judgment as to the failure to accommodate claim. And, finding that there is also a genuine dispute of material fact regarding whether CNN's asserted legitimate reason for Dougherty's termination was a pretext for discrimination or retaliation, the Court also denies summary judgment on Dougherty's remaining DCHRA claims. Next, CNN has shown that Dougherty was ineligible for both FMLA and DC FMLA leave as of January 1, 2016, and did not become eligible for either at any point until his termination. The Court accordingly grants CNN's motion for summary judgment as to his FMLA and DC FMLA interference claims. Finally, because Dougherty was ineligible under both statutes, the Court also grants CNN's motion for summary judgment
The Court first reviews CNN's motion for summary judgment on Dougherty's claim for failure to accommodate pursuant to the DCHRA. DCHRA failure to accommodate claims "are analyzed in the same manner as an ADA [Americans with Disabilities Act] claim." Giles v. Transit Emps. Credit Union, 32 F.Supp.3d 66, 70 (D.D.C. 2014). And in order to make out a failure to accommodate claim under the ADA, a plaintiff "must demonstrate by a preponderance of the evidence: (1) that []he was an individual who had a disability within the meaning of the statute; (2) that the employer had notice of h[is] disability; (3) that with reasonable accommodation []he could perform the essential functions of h[is] job; and (4) that the employer refused to make such accommodations." Lee v. District of Columbia, 920 F.Supp.2d 127, 133-34 (D.D.C. 2013) (quoting Etheridge v. FedChoice Fed. Credit Union, 789 F.Supp.2d 27, 35 (D.D.C. 2011)). CNN argues that it is entitled to summary judgment because Dougherty could not perform some of the essential functions of the photojournalist position, even with his proposed accommodations. The Court disagrees. It first reviews the parties' arguments regarding what the relevant essential functions of the photojournalist position 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.
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 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
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 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.
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
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 CNN has not provided evidence to suggest that climbing occurs more than marginally in the course of performing the position of photojournalist.
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,
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 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.").
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
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.
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 v. Transit Employees Federal Credit Union, 794 F.3d 1, 6 (D.C. Cir. 2015)). 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 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
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 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
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.
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 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)).
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. Baldrige, 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) (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.,
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. 2010) (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.
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 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 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
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
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 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
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 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.
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.
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 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.
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 HR E-mail. The failure to designate the leave as DC
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.
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.
For the foregoing reasons, Defendant's motion for summary judgment (ECF No. 28) is
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.
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.
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 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.
