EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. FOX NEWS NETWORK, LLC

Filing 4

MOTION to Dismiss for Failure to State a Claim or, Alternatively, for Summary Judgment with Memo in Support by FOX NEWS NETWORK, LLC (Attachments: # 1 Affidavit of Dianne Brandi, Esq., # 2 Exhibit A to Brandi Affidavit, # 3 (sealed)Exhibit B to Brandi Affidavit, # 4 Exhibit C to Brandi Affidavit, # 5 Exhibit D to Brandi Affidavit, # 6 Exhibit E to Brandi Affidavit, # 7 Exhibit F to Brandi Affidavit, # 8 (sealed) Exhibit G to Brandi Affidavit, # 9 Exhibit H to Brandi Affidavit, # 10 Exhibit I to Brandi Affidavit, # 11 Exhibit J to Brandi Affidavit, # 12 (sealed) Exhibit K to Brandi Affidavit, # 13 Exhibit L to Brandi Affidavit, # 14 Exhibit M to Brandi Affidavit, # 15 Text of Proposed Order)(Morris, Frank). Added MOTION for Summary Judgment on 11/5/2010 (znmw, ). Modified on 11/9/2010 (zrdj). (The exhibits contained privacy information and was restricted pursuant to the E-Government Act.) Modified on 11/9/2010 (zrdj, ).

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. FOX NEWS NETWORK, LLC

Doc. 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
EQUAL EMPLOYMENT

COMMISSION,

OPPORTUNITY

) )

Plaint'iff. )
- against -

I

)
)
) ) ) )

10 Civ.01660 (RJL)

FOX NEWS NET\ryORK, LLC,
Defendant.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT
Pursuant to Fed. R. Civ. P. 12(bX6), Defendant Fox News Network, LLC ("Fox News")

moves to dismiss the complaint on the grounds that it is devoid of factual allegations sufficient to
state a claim upon which relief can be granted. Alternatively, pursuant to Fed. R. Civ. P. 56, Fox

News moves for summary judgment on the grounds that there is no genuine issue as to any

material fact, and it is entitled to judgment as a matter of law. Accordingly, and for the reasons set forth in detail in its accompanying memorandum of law, Fox News respectfully requests that the complaint be dismissed with prejudice in its
entirety.

Dated: November

4,2010

Respectfully submitted, EPSTEIN BECKER & GREEN, P.C.

Of Counsel: Barry Asen
Epstein Becker & Green, 250 Park New York, NY 10177 (2t2) 3s1-4847

By: /s/ Frank C. Morris,

Jr.

Avenue

P.C.

Ronald M. Green (Bar No, 39966) Frank C. Morris, Jr. (Bar No, 211482) 1227 25rh Sffeet NW Washington, D.C. 20037 -1 17 5 [phone] Attorneys for Fox News Network, LLC

Dockets.Justia.com

IN THE LINITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

EQUAL EMPLOYMENT COMMISSION,

OPPORTI.INITY

) )

Plaintiff,
- against -

I
) ) ) ) )

)
Defendant.

l0 Civ.01660 (RJL)

FOX NEWS NETWORK, LLC,

DEFENDANT FOX NEWS'MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT

Respectfully submitted, Ronald M. Green Frank C. Morris, Jr. Epstein, Becker Green, P,C. 1227 25th Street NW Washington, DC 20037-1175 Attorneys for Fox News Network, LLC

TABLE OF CONTENTS
paqe

TABLE OF

AUTHORITIES STATEMENT FACTS,...........

...,............

ii

PRELIMINARY

.,........ I .,,,.,,2

STATEMENT OF

APPLICABLE LEGAL STANDARDS FOR MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY ruDGMENT.............,. ,..............,......6

A. Applicable
B,

Legal Standards Under Rule

l2(b)(6).............. 56.....

............ 6
.......,..,.. g

Applicable Legal Standards Under Rule

ARGUMENT
THE COMPLAINT SHOULD BE DISMISSED AS A MATTER OF LAW BECAUSE THE EEOC HAS NOT STATED A CLAIM UPON WHICH RELIEF CAN BE GRANTED AND CANNOT ESTABLISH A PRIMA FACIE CASE OF

RETALIATION.

..........,....... 9

A. The Proposed B. The Proposed

Language At Issue was Not Retaliatory on Its Face. .............................,. l0

Language Was Not A Materially Adverse Action. It Was Only A Proposal That Was Never Adopted, And It Did Not Result In Any Injury Or Harm To Ms. Henidge. Distress, Which Allegedly Was Caused By The Proposed Language, Is Insufficient To Create A Materially Adverse

.................. I I

C. Ms. Herridge's Alleged Emotional

Action

....,...l4
..,.... 16

CONCLUSrON..........

TABLE OF AUTHORITIES
Page

A.

CASES

Ahujav. Detica Inc. _F, Supp.2d _,2070 V/L 3833956 (D.D.C. Sept. 30, 2010)...............,....,.8
Anderson v. Liberty Lobby, Inc., 477 U.5. 242

(1986)

...,......,...8

Ashcroft v, Iqbal,

_

U.S,

_,

129 S.Cr. I 937

(2009)

............6, g ...11, t4 .....,........9, l5 ......,.........,..,.,6
......,....14

2008) Becffirdv. Geithner,66l F. Supp.2d 17 (D.D.C.2009).........
Baloch v. Kempthorne, 550 F.3d I 191 (D.C. Cir. Bell Atl. Corp, v. Twombly, 550 U.S. 544 Benjaminv, Duncan,694F. Supp.2d

(2007) 2010)........

I

(D,D.C.2010)

Booth v. District of Columbia,T0l F. Supp.2d 73 (D.D.C.

13, l5 .......,..,.........,,.15 ..................9

Bowdenv. Clough,658 F. Supp.2d

6l (D.D.C. 2009)........

Brown v. Mills, 674 F. Supp.2d 182 (D.D.C

,2009) (2006) ..,.,.....

Burlington Northern & Santa Fe Ry. Co. v. [rhite,548 U.S. 53
Celotex Corp. v. Catrett,477 U.S. 317 (1936) Cole v. Powell,605 F. Supp.2d 20 (D,D.C.

.......2,9, l l-13
.....,...,...,..8

2009)......... 2010)........ 1997),

,.....7,12
.....,....13 ......,....7

Diggs v. Potter,7O0 F. Supp.2d 20 (D.D.C.

EEOC v. St. Francis Xavier Parochial School,l l7 F.3d 621 (D.C, Cir.
Gaujacq v. EDF,

Inc,,60l F.3d 565 (D,C. Cir, 2010).

...,....9,12
.........2, g, t3

Geleta v. Fenty,685 F. Supp.2d 99 (D.D.C.

2010) 1988) 2010).......

Hollis v. U.S. Dept. of the Army,856 F.2d 1541 (D.C. Cir.
Johnson v. Bolden,699 F. Supp.2d 295 (D.D.C.

,...,....,...,8 ..................,,..15 8, 9, 13

Martin v. Locke,659 F. Supp.2d 140 (D.D.C.

2009).......

Pagç

McMqnus v. Disftict of Columbia,530 F. Supp.2d 46 (D.D.C.
Papasan v. Allqin,478 U.S. 265 (1986)

2007)

....,,..7 ,,......7 ......,.,.12

.......... 2010).......,...,.. 2010)

Porter v. Shah,606 F.3d 809 (D.C. Cir.

Schmidt v, Shah,696F. Supp.2d 44 (D.D.C,

..,.........7, t3 ...,.,.,...,.......,.12
,,.,,.,15

Taylor v. Solis,571 F.3d 1313 (D.C. Cir. Tottenv. Norton,42lF.

2009). Supp.2d 115 (D.D.C.2006).......

B.

STATUTES

Fed. R. Civ, P.
Fed. R. Civ. P.

12(bX6)..... 56.............

passim passim

C.

TREATISES

5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE $ 1366 (3d ed. ..........,........,...8

2004)

I

I JAMES wM. MooRE, MooREís FEDERAL PRACTICE $ s6.30t41 (3d. ed,2010)...........7

ll1

PRELIMINARY STATEMENT
The U,S. Equal Employment Opportunity Commission ("EEOC") has filed a frivolous
lawsuit against the Fox News Network ("Fox News").

More than two years ago, Catherine Herridge, a long-time, highly-compensated, on-air
reporter employed at Fox News' Bureau in Washington, D.C. ("the D.C. Bureau"), filed a charge

with the EEOC, alleging that Fox News was discriminating against her because of her sex
(female) and age (early 40s) and was retaliating against her in several ways because she had complained internally about the alleged discrimination. Notwithstanding the pendency of her EEOC charge, on June 18, 2009, Fox News and Ms. Herridge completed their negotiations and

signed

a three-year renewal employment

agreement ("Agreement"), which increased her
$530,000 in year 2, and $570,000 in year

$460,000 annual salary to $495,000 in year

l,

3, The

Agreement was signed after Ms. Henidge abandoned her wholly unrealistic salary demands, which at one point reached $900,000 for year

I of the Agreement,

On March 31, 2010, more than nine months after the Agreement was signed, the EEOC
issued its Determination conceming Ms. Henidge's discrimination and retaliation charges. The

EEOC found insufficient evidence

of sex or age discrimination It

against Ms, Henidge and
stated, however, that Fox

insuffrcient evidence conceming most of her retaliation claims.

News had proposed during negotiations that certain "retaliatory" language be included in the
Agreement, which, although not contained in the final Agreement, allegedly contributed to a
delay in contract negotiations and resulted in harm to Ms, Henidge because she was purportedly

"denied full wages." When Fox News asked the EEOC to reconsider its Determination because,

inter alia, Ms. Henidge's salary increase was, in fact, paid retroactively, the EEOC declined to
reconsider, but cavalierly stated that it recognized that the salary increase had been retroactive.

The "anti-retaliation provision [in Title VII of the Civil Rights Act] protects an individual

not from all retaliation, but from retaliation that produces an injury or harm." Burlington
Northern & Santa Fe Ry. Co, v. White, 548 U.S. 53, 67 (2006), see Geleta v, Fenty,685 Supp.2d 99, 102 (D.D.C.2010) (quoting Burlington,54S U.S.
F.

at 67) (Leon, J.).

Here,

Ms, Henidge did not experience any injury or harm. Instead, she received a retroactive $35,000
annual salary increase, which escalated to a $ I 1 0,000 increase by year 3 of the Agreement, For this reason, and as addressed in detail in this memorandum of law, the EEOC has not
stated a plausible claim upon which relief can be granted and cannot even establish a primafacie

case

of retaliation on Ms. Herridge's behalf. Fox News respectfully requests that the Courl

dismiss the EEOC's complaint as a matter

of law pursuant to Fed. R. Civ. P. l2(b)(6) or,

alternatively, grant summary judgment on Fox News' behalf as a matter of law pursuant to Fed,
R. Civ. P. 56.

STATEMENT OF FACTS
From November 2006 to March 2008, Catherine Herridge, a well-known, on-air reporter employed by Fox News, periodically complained internally that she was being discriminated
against because of her sex and age, particularly with respect to Fox News' decision not to allow her to continue to function as a weekend on-air anchor/weekday on-air reporter and reassigning her to her former full-time position as an on-air reporter. (Complaint

fl l0; Brandi Aff. Ex. A)r

On March 77, 2008, after a lengthy in-house investigation, Ms. Dianne Brandi, Fox News'
Senior Vice President for Legal and Business Affairs (who has since been promoted to Executive

Vice President), determined that Ms. Herridge's claims lacked merit. (Complaint flfl 10-ll;

I

For the convenience of the Court, the Complaint is attached as Exhibit A to the accompanying affidavit

of Dianne Brandi, Esq.

Brandi Aff.

I 1) Ms. Henidge disputed

the findings, and questioned whether the investigation

was impartial and whether its outcome was predetermined. (Complaint fl I 1)

At the time Ms. Henidge disputed the f,rndings, she was employed pursuant to a written
three-year Agreement and paid an annual salary of $460,000 in the final year of the Agreement,

(Complaint

I

12 at 2; Brandi Aff. Ex.

B)

Thereafter, on August

6, 2008, Dianne Brandi

forwarded a proposed three-year renewal Agreement to Ms. Herridge's agent, Henry Reisch of
the William Morris Agency, for his and his client's consideration. (Complaint fl

l2; Brandi Aff.

Ex,

C)

The proposed Agreement called for increased annual salaries of $495,000 in year

l,

$530,000 in year 2, and $570,000 in year

3. (Complaint flfl 12,74;

Brandi Aff. Ex. C at 2) The

initial proposed Agreement also contained the following language, proposed in an effort to "clear
the air" going forward, which the EEOC alleges in paragraphs 12 and 13 of its Complaint was retaliatory and "an adverse action" against Ms. Henidge:
Performer agrees that she

will not

serve as an anchor/co-anchor, or

an occasional anchor/co-anchor during the Term hereof, unless Fox, in its sole discretion, decides otherwise. Both Performer and Fox acknowledge that Performer has raised allegations of

positions and concerning other matters, and that Fox has investigated Performer's allegations. Performer and Fox also

discrimination in the past concerning her non-assignment to anchor

(Complaint

1[1]

l2-13; Brandi Aff. Ex. C at 1) (Emphasis added)

On August 15,2008, Ms. Herridge objected to the above language and the proposed
salary increases, among other things, and refused to sign the three-year Agreement. (Complaint

fl l3; Brandi Aff. Ex. D)

She proposed deleting the above language and entering

into af:e-year

Agreementwiththe following annual salaries:

(l) $621,000 foryear 1,(2)5714,150 for year2,

(3) 821,272 for year 3, (4) $903,399 for year 4, and (5) $993,739 for year 5. (Brandi Aff. Ex. D)

On September 12,2008, after Fox News rejected her proposal and salary demands, Ms. Henidge actually increased her salary demands as follows: (1) $900,000 in year 1, (2) SSZ|000 in year 2, (3) $950,000 in year 3, (4) $975,000

in

year 4, and (5) $1,000,000 in year

5. (Brandi Aff. Ex. E)

On September 17, 2008, Fox News responded and rejected her escalating salary demands,
advising that she was already the highest-paid reporter in the D.C. Bureau, and it was not helpful

for negotiation purposes to demand a 95Yo salary increase in year

I of a new Agreement and to
Aff. Ex. F)
a

increase her prior August 15, 2008 salary demand by $279,000. (Brandi

Unbeknownst to Fox News, aday earlier, on September 16,2008, Ms. Henidge filed

charge with the EEOC alleging sex discrimination, age discrimination, equal pay discrimination, and retaliation. (Complaint

fi

8, l4; Brandi Aff. Ex.

G)

Specifically, she asserted that:

(l)

her

weekend anchor/part-time reporter position was converted into a full+ime reporter position because

of her sex and age, (2) her internal discrimination complaint was not properly

investigated, (3) she was retaliated against in various respects for complaining, and (4) other
employees were discriminated against as well, (Brandi Aff. Ex. G)

In November 2008, contract negotiations stalled, (Complaint T 13) On February 5,2009,

Mr. Reisch, Ms.Herridge's
proposal. (Brandi Aff. Ex.

agent, asked Dianne Brandi

to

respond

to his client's

recent
and

H)

On February 73, 2009, Ms. Brandi replied that he

Ms. Henidge had not actually proposed anything at all recently, as they still had not responded to

Fox News' last counter-proposal made almost lour months earlier. (Brandi

Aff. Ex. I)

On

March 5,2009, Mr. Reisch made a new proposal and did not challenge Ms. Brandi's statement
that he and Ms. Henidge had not made a proposal in almost four months. (Brandi Aff. Ex. J)

On June 18, 2009, Fox News and Ms. Henidge finally entered into a new three-year

Agreement, (Complaint fl

14)

The Agreement did not contain the language to which

Ms. Henidge had objected and set her annual salary at $495,000 for year

l, $530,000 for year 2,

and $570,000 for year 3, the same substantial increases that Fox News originally proposed on

August 6, 2008. (Complaint

fl 14; Brandi Aff.

Ex. K at

2) Ms. Herridge's

salary increase to

$495,000 in year 1 of the Agreement was retroactive. (Brandi Aff. Ex. J at 2)

On March 31,2010

-

ly,

years after Ms. Herridge filed her EEOC charge and more than

nine months after she and Fox News entered into their new Agreement

- the EEOC issued its

Determination conceming the claims set forth in Ms. Herridge's EEOC charge. (Brandi Aff. Ex,

L)

The EEOC did not find merit regarding any of her discrimination claims and the majority of

her retaliation claims, stating as follows: "With respect to Charging Party'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, there

is insufficient evidence to establish a violation of the statutes as to these allegations

.-

(Id.)
stated:

As to other alleged retaliatory conduct, however, the EEOC inexplicably
"Respondent included new language

in Charging Party's proposed employment contract

that

referenced Charging Party's allegations of discrimination and contributed to the delay in contract

negotiations, which resulted in Charging Party working without an employment contract and being denied

full wages." (Brandi Aff. Ex, L) After issuing its Determination, however,

the

EEOC conceded that Ms. Herridge's salary increase was paid retroactively. (1d., Ex, M)2

The EEOC Determination also stated that "the evidence shows that Charging Paúy complained of discrimination on several occasions, and within close proximity of one of those complaints, the Respondent disseminated a company-wide email discouraging employee complaints." The EEOC references this e-mail in the Complaint, (Complaint 'l[ I I ) Ms. Herridge, however, did not claim in her EEOC charge that the e-mail was retaliatory; her EEOC charge does not even mention the e-mail; nor does the e-mail refer to Ms. Herridge in any way. (Brandi Aff. I 3 and Ex. G) Moreover, during its investigation, the EEOC failed to advise Fox News that the e-mail was parl of its investigation. (Brandi Aff. T 3 and Ex, L) Fox News learned that the e-mail was one of the subjects of the investigation only upon reading the EEOC's Determinarion. (Id.)

2

Ms, Henidge remains employed by Fox News as a full-time reporter at the D.C, Bureau
and is paid an annual salary of $530,000. (Complaint fl 14; Brandi Aff. T 2 and Ex. K at

2)

The

EEOC contends, however, that Ms. Henidge was somehow materially adversely affected by Fox

News' proposed language during negotiations and before the Agreement was signed

because,

throughout negotiations, she was in constant fear of being discharged and losing her livelihood
and employment benefits. (Complaint fl 15) The EEOC does not allege in its complaint that Fox

News ever threatened Ms. Herridge with termination during negotiations, or that she was not
paid during the negotiations period, or that she experienced any hnancial harm. (See Complaint

generally) Nor does the EEOC allege that the proposed language was ultimately included in the Agreement. (Complaint fl 14)

APPLICABLE LEGAL STANDARDS FOR MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT
Fox News seeks the dismissal of the EEOC's complaint as a matter of law pursuant to
Fed. R. Civ. P. 12(bX6) or, altematively, pursuant to Fed. R. Civ. P.
standards applicable to each rule are addressed in turn.

56.

The relevant legal

A.

Applicable Legal Standards Under Rule l2(bX6) Dismissal of a complaint is appropriate when the plaintiff has "fail[ed] to state a claim

upon which relief can be gtanted." Fed. R. Civ. P. l2(bX6). To survive a motion to dismiss, the

complaint must set forth "sufficient factual material," which if accepted as true, states a claim for

relief that is "plausible on its face." Ashcroft v. Iqbal,

_

u.s. _,129 s.ct. 1937, lg4g (2009).
a

Although detailed factual allegations are unnecessary to survive a Rule l2(bx6) motion,

complaint must set forth "more than labels and conclusions" or "a formulaic recitation of the
elements of a cause of action." Bell Atl. Corp, v. Twombly,550 U.S. 544, 555 (2007). Similarly,

a court need not consider a complaint's legal conclusions couched in the form of

factual

allegations. Papasan v. Allain,478 U.S. 265,286 (1986); McManus v. District of Columbia,530
F. Supp.2d 46,64 (D.D.C.2007).

When evaluating a Rule l2(bx6) motion, a court is limited to considering "the facts
alleged in the complaint, any documents either attached to or incorporated in the complaint, and matters of which
I

[it] may take judicial notice." EEOC v, St, Francis Xavier Parochial School,
v. Shah, 696 F. Supp.2d 44, 58 (D.D,C, 2010).

l7 F.3d 621, 624 (D.C. Cir. 1997); Schmidt

"A

court can consider materials outside the complaint without converting the motion to one for
summary judgment when the documents are incorporated into the complaint and are central to

the plaintiff s claim." Cole v. Powell,605 F. Supp.2d 20, 26 (D.D.C. 2009) (Leon,

J.).

Thus,

when "a document is referred to in the complaint and is central to the plaintifls claim ..., the
defendant may submit an authentic copy to the court to be considered on a motion to dismiss, and the court's consideration of the document does not require conversion of the motion to one

for summary judgment;' See 11 JAMES wM. MooRE, MooRE'S FEDERAL PRACTICE
s6.30[4] (3d. ed, 2010). Here, as

$

to Fox News' motion to dismiss, the Court can readily rely on most of the

documents attached to Dianne Brandi's Affidavit including the February2l,2006 Agreement

(Ex. B), Fox News' August 6, 2008 proposed Agreement (Ex. C), Ms. Herridge's EEOC charge (Ex. G), the Agreement that is currently in effect (Ex. K), the EEOC's Determination concerning

Ms. Henidge's discrimination and retaliation claims (Ex. L), and the EEOC's denial of Fox News' request for reconsideration (Ex.

M). All

are incorporated into the complaint, central to

the claims presented in the complaint, or matters of which judicial notice can be taken. See St.

Francis Xavier Parochial School,117 F.3d at 624; Cole,605 F.Supp.2d at26. If this Court also
opts to rely on the other documents attached to the Brandi Affidavit as Exs. D-F and H-J, which

are not incorporated into the complaint, but provide the 2008-09 negotiations history between Ms. Henidge and Fox News, it can readily convert Fox News' motion to dismiss into a summary judgment motion. See Ahuja v, Detica Inc.,

_F.

Supp.2d

_,2070 V/L

3833956, at *4 (D.D.C.

Sept. 30, 2010); Martinv. Locke,659 F. Supp.2d 140,144-45 (D.D.C. 2009) (Leon, J.).

B.

Applicable Legal Standards Under Rule 56

A

court, in its sound discretion, may convert a motion to dismiss into a motion for

summary judgment, Hollis v. U,S. Dept. of the Army,856 F.2d 1541, 1543 (D,C. Cir. 1988); see

5C CHARLES ALAN WRIGHT

& ARTHUR R, MILLER,

FEDERAL PRACTICE AND

PROCEDURE $ 1366 at 159 (3d ed. 2004). Courls should be mindful, holever, that "no useful
purpose can be served by fconverting a motion to dismiss to one for summary judgment] where it

is clear that the dispositive facts will remain undisputed and unchanged." Hollis,856 F,2d at
1544; Ahula,20l0 WL 3833956, at*4.

Summary judgment should be granted where the record demonstrates that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter

of

law."

Fed, R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.5. 317 , 322 (1986).

A party

opposing summary judgment "may not rest upon the mere allegations .. . of his pleading, but ... must set forth specific facts showing that there is a genuine issue for

trial." Anderson

v. Liberly

Lobby, Lnc.,477 U.5.242,255 (1986) (citing Fed. R, Civ. P. 56(e)), A dispute about a material

fact is not genuine unless "the evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Anderson,477 U.S. at 248.

As next shown, under either Rule l2(b)(6) or Rule 56, the EEOC's complaint should be
dismissed in its entirety with prejudice.

ARGUMENT

THE COMPLAINT SHOULD BE DISMISSED AS A MATTER OF LAW BECAUSE THE EEOC HAS NOT STATED A CLAIM UPON WHICH RELIEF CAN BE GRANTED AND CANNOT ESTABLISH A PRIMA FACIE CASE OF RETALIATION.
To establish a prima facie case of retaliation, an employee must show that she engaged in
a statutorily protected activity; she suffered a "materially adverse action" by her employer; and a causal linkconnectsthe

two. Gaujqcqv. EDF, lnc.,601 F.3d 565,577 (D.C.Cir.20l0); Martin,

659 F.Supp'2d at 149,

A materially adverse action is an action that "could well

dissuade a

reasonable worker from making

or supporting a charge of discrimination," ft/,

(quoting

Burlington, 548 U.S. at

68).

Thus, not all alleged retaliation is actionable; rather, the only

alleged retaliatory actions that state a claim are those that are "materially adverse" in the sense that they produce "an injury or harm" to an employee. Burlington,54S U.S. at 67; see Brown
v.

Mills,674 F. Supp.2d 782, 189 (D.D.C.2009); Beclcford v. Geithner, 661 F. Supp.2d 17,22
(D.D'C. 2009). Unless the injury or harm pleaded is suffrcient to rise to the level of a materially
adverse action, the retaliation claim is not even plausible on its face and should be dismissed as a

matter of law. see

Iqbal,l29 s.ct. at 1949; Burrington, 54g u.s. af 6g-69.

Moteover,

in

assessing whether the alleged

injury or harm could well dissuade an

employee from bringing a discrimination charge, the Supreme Court emphasized that courts
should utilize a reasonable employee standard, and therefore an alleged injury or harm premised upon an employee's "unusual subjective feelings" is not actionable. Burlington, 548 U.S, at 6g-

69; see Geletq, 685 F'. Supp.2d

at 102. The Court also stressed that context matters.

By

illustration, the Court explained that a supervisor's refusal to invite an employee to lunch is immaterial and non-actionable, but excluding an employee from a weekly training lunch that

could affect his future advancement prospects might rise to the level of a materially adverse action. Id. at 69.

A.

The Proposed Language At Issue Was Not Retaliatory On Its Face.

The EEOC alleges that Fox News retaliated against Ms. Henidge by merely proposing

during negotiations that certain language be included in their Agreement, language that did not
even suryive the negotiation process and is not contained in the final Agreement. Notably, Fox

News proposed the language before Ms. Herridge hled a charge with the EEOC. (See Brandi

Aff, Exs. C and G) The language set forth that: (1) Ms. Henidge would not be an anchor unless
Fox News decided otherwise; (2) she alleged discrimination concerning her non-assignment to
an anchor position and other matters; (3) Fox News investigated her allegations and determined

that discrimination did not occur; and (4) she did not agree with Fox News' determination.

(Complaintl12;

see Brandi

Aff. Ex. C. at l)

This proposed language was neutral, completely true, did not require Ms. Herridge to
waive her allegations of discrimination at the EEOC or in court and, obviously, did not dissuade

her from hling a discrimination and retaliation charge with the EEOC. The language simply
memorialized what Ms. Henidge and Fox already knew -- Fox News did not intend to make her
an anchor againl' she alleged discrimination; Fox News had investigated and concluded that there

was no discrimination; and she did not agree. Moreover, the proposed language actually
demonstrates that Fox News was ready and willing to enter inÍo a new Agreement with Ms.

Herridge notwithstanding her allegations of disuimination, which is the antithesis of re[aliation.
Nonetheless, the EEOC contends that the proposed language, standing alone, "constituted

an adverse action against Henidge because
because

it was placed in Henidge's employment

contract

of her previous complaints of discrimination, was intended by Defendant to dissuade

Henidge from making further complaints

of

employment discrimination, and would have

l0

dissuaded a reasonable person from making further complaints of employment discrimination,"

(Complaint

I l3) Attempting

to show that Ms. Henidge was injured or harmed as a consequence

of the proposed language, the EEOC can only muster that she allegedly feared for her job and
employment benefits during the negotiations period. (Complaint fl l5) These allegations, even

if

taken as true, do not rise to the level of a "materially adverse

action" against Ms. Henidge for two reasons. First, the language did not produce any
employment injury ot harm, or even threaten any employment injury or harm, of the nature that

would dissuade a reasonable employee from complaining about discrimination; second, her
alleged emotional distress during negotiations is not enough as a matter of law to establish a materially adverse action.

B.

The Proposed Language Was Not A Materially Adverse Action. It V/as Only A Proposal Assuming solely for the sake of argument that the language at issue is retaliatory, Ms.

Henidge still did not suffer from any "materially adverse action" by Fox News, and thus the
complaint fails to state a claim for purposes of Rule 12(bX6) and fails to allege a prima facie
case

of retaliation for purposes of Rule 56. Fox News paid Ms. Henidge throughout the

negotiations period; she received her initial $35,000 salary increase retroactively; the so-called retaliatory language was deleted in the final Agreement as parl of the negotiation process; and by
the Agreement's third year, Ms. Herridge's salary

will have increased by $t10,000. (Complaint

fl 14; Brandi Aff. Exs. B, K and M)
Since the Supreme Court's 2006 decision

in Burlington, the D.C. Circuit Court of

Appeals has repeatedly dismissed employees' retaliation claims based on their inability to show that they suffered a materially adverse action.

In

Baloch v. Kempthorne, 550 F.3d 1191, I198-

99 (D,C. Cir. 2008), the employee claimed that after he lodged an intemal discrimination

1l

complaint, he was threatened with suspensions, one for two days and the other for 30 days, and although the suspensions were not carried out, the threats tarnished his reputation and caused

him emotional distress. In affirming the summary judgment awarded by this Court, the Court of
Appeals instructed that "courts have been unwilling to find adverse actions where the suspension

is not actually setved." Id. at 1199. The parallel here is clear: The language about which the
EEOC complains is not contained in the final Agreement between Fox News and Ms. Herridge,
and therefore an adverse action cannot be found. (See Complaint fl

l4)
supervisors

In Taylor v. Solis, 571 F.3d 1313, I 320-21 (D.C. Cir. 2009), an employee's
criticized her behavior, required her

to submit biweekly work

status reports, declined to

recommend her for a position that was not ultimately created, and lowered her performance evaluation rating in a manner that did not affect her salary or promotional potential. The Court

of Appeals concluded that these actions, taken separately or as a whole, were not materially
adverse because they were not substantial enough to dissuade a reasonable employee from filing a discrimination charge. Summary judgment was affirm ed. Id. at 1321-22. Similarly , in Porter

v. Shah,606 F.3d 809, 817-18 (D.C. Cir. 2010), the Court of Appeals affirmed summary
judgment as to an employee's retaliation claim, explaining that criticism of an employee's work
performance, which did not affect his position, grade level, salary or promotional opportunities,

did not rise to the level of a materially adverse action. See qlso Gaujacq,601 F.3d at 577-78

(oral statement threatening employee's job was, in context, not a materially adverse action
because a reasonable employee would have perceived it only as an expression of exasperation).

Adhering To BurlingÍon and the above Court of Appeals decisions, this Court

has

dismissed retaliation claims pursuant to Rule 12(bX6) or 56 on multiple occasions. In Cole,605

F. Supp.2d at 26, Judge Leon granted the employer's Rule 12(b)(b) motion, holding that

a

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materially adverse action did not arise by the employer's demand that the employee submit

a

physician's note concerning any unscheduled future absences and, accordingly, the plaintiff had

not stated an actionable retaliation claim. In Geleta,685 F. Supp.2d at 702-04, Judge Leon
granted summary judgment for the employer and held that the employee's job reassignment, one

in which he actually received salary increases, was not a materially adverse action. Likewise,
here, Fox News provided Ms. Herridge with very substantial salary increases after
she

complained about alleged discrimination, which belies the EEOC's contention that she was the

victim of

a

materially adverse action.

lnBoothv. District of Columbia,707 F, Supp.2d 73,79-81 (D,D.C,2010), Judge Leon
granted summary judgment because diminished performance evaluations and letters of
admonition, neither of which was consequential in financial terms, were not materially adverse actions. The same result ensued in Martin,659 F. Supp.2d at 149-50, where Your Honor granted
summary judgment because a laterul transfer was not a materially adverse action given that the

plaintiff merely asserted "generalized impressions about the inferiority of her new job."
The other judges of this Court have also adhered to Burlingron and the above Court of Appeals decisions. For example, in Schmidt,696 F. Supp.2d at 66-67, the employee claimed retaliation because his employer requested that he refrain from submitting unsolicited statements

to an EEO investigator. In dismissing his retaliation claim pursuant to Rule 12(bX6),

Judge

Kollar-Kotelly, quoting Burlington, 548 U.S. at 67, stated that the anti-retaliation laws do not
protect employees from all retaliation, but only "from retaliation that produces injury or harm."

ln

Diggs v. Potter,700 F, Supp.2d 20,44 (D.D.C. 2010), Judge Sullivan granted summary

judgment to the employer, observing that

it is "well settled in this Circuit that 'absent some

consequential harm or injury, a delay [in payment of money owed] does not affect the terms,

l3

conditions or privileges of employment and does not constitute an adverse employment action."'

(citations omitted). And in Benjamin v. Duncan,694F. supp.2d

l,

9 (D.D.c. 2010),

Judge

Friedman dismissed an employee's retaliation claim, quoting Baloch,550 F.3d at 1199, that poor

"[p]erformance appraisals typically constitute material adverse actions only when attached to
financial harms."

As these cases amply demonstrate, threatened suspensions that do not come to

pass,

criticism of employees' job performances, poor performance appraisals not tied to salary
increases or promotions, and requests not to volunteer information to EEO investigators, all fall

short

of materially adverse actions under D.C. Circuit case law

because

of the absence of

sufficient injury or harm. Here, Ms Herridge was not injured or harmed in any way; she was not ever threatened with injury or harm. Instead, she received substantial raises and the proposed
language to which she objected was deleted before the Agreement was executed, Accordingly, the EEOC has not stated an actionable retaliation claim on her behalf and cannot even establish a

primafacie

case of retaliation.

C.

Ms. Henidge's Alleged Emotional Distress, Which Allegedly Was Caused By reate A Action. Given that the EEOC is unable to tie the objected-to proposed language to any fìnancial

harm suffered by Ms, Henidge, the EEOC claims that the harm that Ms. Henidge experienced
was the fear of losing her job and emotional distress. (Complaint

fl l5) Ms. Herridge's alleged

subjective fear that she might be terminated at any time during negotiations is legally insufficient

to establish a material adverse action and a prima facie

case

of retaliation. Moreover, it should

not be overlooked that her exorbitant salary demands and her failure to respond to one of Fox
News' proposals for four months betray the claim of fear. (Brandi Aff, Exs. D-8, H-J)

T4

In any event, as a matter of law, this Court has repeatedly rejected emotional distress as the type of underlying injury or harm necessary to support a materially adverse action, In
Johnson v. Bolden,699 F. Supp.2d 295,299-300 (D.D,C. 2010), Judge Leon granted summary judgment to the employer on the employee's retaliation claim, explaining that "[o]ur Circuit has
made clear that the harm must be 'objectively tangible' rather than 'purely subjective injuries' ,..

[because] not everything that makes an employee unhappy is an actionable adverse action." (citations omitted). See also Booth,701 F. Supp.2d at 80 (Leon, J.) "dissatisfaction with a job
assignment, public humiliation or loss of reputation ... are not adverse actions").

In Totten v. Norton, 421F. Supp.2d 715, l2I (D.D.C. 2006), Judge Bates granted a Rule
l2(bX6) motion to dismiss an employee's retaliation claim, stating: "Courts in this Circuit ,,.
have held that purely psychic injuries such as embarrassment do not qualify as adverse actions

for

purposes

of the federal anti-discrimination statutes."

Judge Huvelle reached the same

conclusion in Beclcfordv. Geithner,66l F. Supp.2d at27-28, where the employer launched an

investigation into the employee's background, which could have, but did not lead

to the

employee's termination, holding that an employee's "subjective fear" of a possible adverse
outcome does not constitute a material adversity because "fp]urely subjective injuries ... are not adverse actions." See Bowden v. Clough,658 F. Supp.2d 61,95-97 (D.D.C. 2009) (Walton, J.)

(while

"it is understandable why the plaintiff would be unhappy"' with criticisms, such

subjective feelings do not constitute an actionable adverse action).

As all of the above cases demonstrate, Ms. Henidge's subjective fear of being discharged
does not transform the alleged retaliatory language in the proposed Agreement into a materially
adverse action that is actionable.

l5

CONCLUSION
Although the EEOC dismissed all of Ms, Henidge's discrimination claims and most of
her retaliation claims at the conclusion of its investigation, it has unreasonably decided to pursue

this action against Fox News based upon proposed language in a proposed Agreement that is not only non-retaliatory on its face, but was removed as part of the give-and+ake bargaining process

that resulted in a f,rnal three-year Agreement whereby Ms. Henidge received annual salary
increases of $35,000, $70,000 and $110,000 respectively, with the initial $35,000 increase being

retroactive. The EEOC's complaint is not only without merit,

it is frivolous, Fox News

respectfully requests that the Court dismiss the complaint in its entirety with prejudice pursuant

to either Rule 12(b)(6) or Rule 56 of the Federal Rules of Civil Procedure, and award costs,
disbursements and reasonable attorneys' fees to Fox News.

Respectfully submitted, Dated: November 4,2010 EPSTEIN BECKER & GREEN, P.C.

By:

/s/ Frank C. Monis. Jr. Ronald M. Green (Bar No. 39966) Frank C. Morris, Jr. (Bar No. 211482) 1227 25Th SÍeet NV/ V/ashington, D,C. 20037 -I 17 5 (202) 86r-0e00 Attorneys for Fox News Network, LLC

Of Counsel,
Barry Asen Epstein, Becker Green P.C. 250 Park Avenue New York, New York 10177 (212) 3st-4847

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