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Medical restrictions not shown to prevent CNN photojournalist from performing essential job functions, so disability claims advance

By Kathleen Kapusta, J.D.

CNN argued that it had to fill the injured photojournalist’s position because of the particularly high demands of the 2016 political season, citing as a business justification that it planned to “up-staff with temporary photojournalists in order to alleviate the strain of political coverage.”

A CNN photojournalist who suffered numerous injuries over his almost 20-year career with the cable news network, and who alleged that CNN refused to give him medical leave or otherwise accommodate him after he injured his knee in December 2015 and instead unlawfully terminated him and replaced him, can proceed to trial on his DCHRA failure-to-accommodate claim, a federal court in the District of Columbia ruled, finding CNN failed to show he could not perform his job’s essential functions. Nor was CNN entitled to summary judgment on the employee’s DCHRA disability discrimination, retaliation, and age discrimination claims. His FMLA and DC FMLA claims failed, however, as he was ineligible under either statute during the relevant time period (Dougherty v. Cable News Network, August 30, 2019, Contreras, R.).

Breaking news. As a CNN photojournalist in the D.C. area, the employee was responsible for gathering and shooting video of the news. Photojournalists typically receive their work assignments for the next day every day between 5:00 p.m. and 7:00 p.m. and can be assigned to “stand-up” locations where they are expected to shoot standing for extended periods of time. First and foremost, however, they are expected to cover breaking news and can be called to relocate from stand-up locations to respond to developing situations at any time.

Multiple injuries. The employee, who joined CCN in 1998, underwent two knee surgeries in 2008, had surgery on his right foot in 2010, suffered shoulder and neck injuries in 2012 and 2013, and underwent rotator cuff surgery in March 2015. While on leave for that surgery, CNN purportedly informed him by letter that his leave qualified under the FMLA and would be exhausted on May 31. He returned to work at the end of November or beginning of December 2015. Although his doctor prescribed a list of equipment that would help alleviate future shoulder strain, CNN allegedly never responded.

Knee injury. On December 31, 2015, the employee dislocated his knee stepping out of his CNN-provided vehicle. In early January, his doctor determined that he would be totally incapacitated for eight weeks. CNN purportedly notified him that he had exhausted his FMLA leave. It also determined that he had been entitled to DC FMLA leave at the time of his March 2015 shoulder surgery and retroactively applied his leave for that time period.

High demands of political season. In early February, CNN notified the employee that “[i]n order to meet pressing business and operational needs moving forward,” it was going to fill his position and it could not guarantee a job would be available when he returned from leave. Separately, CNN HR prepared talking points for CNN staff and the employee, which mentioned that his replacement was due to the particularly high demands of the 2016 political season. A “business justification” portion noted that CNN “plan[ned] to up-staff with temporary photojournalists in order to alleviate the strain of political coverage.”

Terminated. The employee then contacted his supervisors, who allegedly told him he could not return until he was 100-percent healed. On February 17, he requested an accommodation under the ADA and was purportedly told by the HR manager that “you made it before you went to the doctor.” He also requested FMLA leave, which CNN denied because it was exhausted. Around the same time, he was cleared to return to light-duty work with restrictions on “carrying equipment downstairs,” and avoiding “running or walking with camera while shooting.” Upon determining that he could not perform the essential functions of his job, CNN effectively terminated him and replaced him with a 35-year old man.

Failure to accommodate. CNN first argued that it was entitled to summary judgment on the employee’s D.C. Human Rights Act failure-to accommodate claim because he could not perform some of the essential functions of his job—including walking, running, carrying equipment, and climbing—even with his proposed accommodations. As to walking and running, the court found no evidence to suggest the employee was unable to walk or run at the time he requested an accommodation. While his doctor declared that he was totally incapacitated on January 5, 2016, he was cleared for light duty on February 22. And although he was restricted from “running or walking with camera while shooting,” there was no indication he was restricted from walking or running. Thus, the court found it did not need to determine whether running or walking were essential functions of the photojournalist job.

Climbing. As for climbing, while the employee was restricted from going downstairs, CNN argued that photojournalists could be required to climb structures to gather news. Its job description, however, did not explicitly list climbing as a job function but instead focused on skills like shooting and editing. And while a photojournalist may have to engage in climbing on occasion, that did not make it essential to the position, the court observed, finding that CNN failed to show that climbing was more than a marginal job requirement. Further, although CNN established that carrying equipment was an essential job function, the employee was only restricted from carrying equipment downstairs.

Finally, said the court, while there was no evidence that running while shooting was an essential job function, there was some evidence that photojournalists sometimes had to walk while shooting. But even assuming this was an essential job function, CNN appeared to acknowledge that the use of an EasyRig camera system, as recommended by the employee’s doctor, would allow him to perform that function. Thus, summary judgment was denied as to this claim.

Disability discrimination. Turning to the employee’s DCHRA disability discrimination claim, the court again rejected CNN’s assertion that he was not qualified for his position because he was unable to perform the job’s essential functions. CNN also argued, however, that it had a legitimate reason for firing the employee: He was unable to return to work and its business and operational needs necessitated filling the vacant position.

But the employee, noted the court, had been cleared to return to work on light duty. And because CNN failed to show his medical restrictions prevented him from performing the essential functions of his position, a reasonable juror could conclude that he could have performed photojournalist assignments and thereby obviated any need for CNN to fill his position. Further, he claimed 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 percent fit for duty and the HR manager derided his request for an ADA accommodation. A reasonable jury, said the court, could infer from these comments that the employee’s disability, and his inability to perform fully as a result, were the real motivation behind CNN’s decision to terminate him.

And finally, while CNN HR indicated as part of the “business justification” for terminating him that the network faced an unprecedented amount of work for its photojournalists and “plan[ned] to up-staff with temporary photojournalists in order to alleviate the strain of political coverage,” it never did so, the court stated, denying summary judgment as to this claim as well.

Retaliation. CNN next argued that the employee’s DCHRA retaliation claim failed because he could not show the termination decision was causally connected to any protected activity. But not only was he terminated less than a month after making his accommodation request, the court again noted that fact issues remained as to whether CNN’s asserted reason for firing him was pretextual. Therefore, this claim also advanced.

Age discrimination. Likewise, the court denied summary judgment against the employee’s DCHRA age discrimination claim. Once again, CNN failed to establish that he 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 fell short at the summary judgment stage.

FMLA and DC FMLA interference. Summary judgment was warranted, however, on the employee’s FMLA and DC FMLA interference claims, said the court, as he was ineligible for leave under either statute. It was undisputed he did not work while out on sick leave between March 4, 2015, and November 23, 2015. Noting that CNN provided evidence that he worked less than 1,000 hours in the 12-month period preceding March 4, 2016, the court found he was ineligible under the FMLA and DC FMLA as of March 4, 2016.

Further, because he 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. Thus, he failed to show he had worked the requisite number of hours to be eligible under either statute as of January 1, 2016 and thus he could not make out a prima facie case of interference for the denial of leave he requested starting on January 1, 2016.

Designating leave as FMLA. Finally, rejecting the employee’s assertion that CNN’s designation of his March 2015 leave as FMLA leave without his consent was improper, the court found that because he informed CNN 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)—CNN rightfully designated the March 2015 leave as FMLA leave.