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 Att. 2

EXHIBIT A

Dockets.Justia.com

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IN THE UNITED STATES DISTRICT COTJRT F'OR TIIE DISTRICT OF COLUMBIA
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintifl
v.

FOX DIEWS iYETWORK LLC

DefendanL

NATTI.RE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964 (,,Tit1e VII,,), Title I

of

the Civil Rights Act of 1991, the Equal Pay Act of 1963 C'EPA"), and the Age Discrimination in

Employrnent Act

of

1967

("4p94'), to correct unlawful emplo¡nnent

practices based. on

retaliation and to provide appropriate relief to Catherine Herridge who was adversely affected by

such practices. Plaintiff, the United States Equa! Employment. opportunity Commission ('Commission'), alleges that Defendant, Fox News Network, LLC ('Defendant'), retaliated
against Catherine Herridge ("Herridge') because she engaged in protected. activity.

JURISDICTION AND VENUE

1'

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. $$ 451, 1331, 1337,

7343 and 1345. This action is authorized and instituted pursuant to the following statutes: (a)
Section 706(Ð(1) and (3) of Title

VII and Section

102 of the

Civil Rights Act of LggI,42U.S.C.

$ 1981a; (b) Sections l6(c) and 17 of the FLSA which enforces the requirement of the EpA; and (c) Section 7þ) of the ADEA.

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2.

The employment practices alleged to be unlawful were committed within the

jurisdiction of the united States District court for the District of Columbia.
PARTIES

3.
Title

Plaintiff, the Equal Employment Opportunity Commission, is the agency of the

United States of America charged with the adminiskation, interpretation and enforcement of

VII,

the EPA, and the ADEA, and is expressly authorized to bring this action by Sections

706(Ð(1) and (3) of Title VII,42 U.S.C. $ 2000e-s(f)(1) ahd (3); Sections 16(c) and t7 of the FLSA, 29 U.S.C. $$ 216(c),
as amonded

by Section 1 of reorganizationPlan No.

I of

L978,92

Stat. 3781, and by Public Law 98-532(1984), 98 Stat. 2705; and by Section Z(b) of the ADEA, 29 U'S.C' $ 626(b), as amended by Section 2 of the Reorganization Plan No. 1 of 1978, 92 Stat.
3787, and Public Law 98-532 (1984), 98 Stat. 2705.

4.
'Washington,

At all

relevant times, Defendant has continuously been ctoing business in

District of Columbiq anì has continuously had at least 20 employees.

5.

At all relevant times, Defendant

has acted directly or indirectly as an employer

in

relation to employees and has continuously been an employer within the mearring of Section 3(d) of the FLSA, 29 U.S.C. g 203(d).

6.

At all relevant times, Defendant has continuously been an employer engaged in an

industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII,42

U.S.C. $$ 2000e(b), (g) and (h); and has continuously employed employees engaged in
commerce or in the production of goods for.commerce within the meaning of Section 3(d), (Ð
and c) of the FLSA, 29 U.S.C. 9203(d), (Ð and 0), and sections 11(b), (e) and (h) of the ADEA, 2e U.S.C. $$ 630(b),(g) and (h).

'

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CONCILIATION

7.
to

Prior to the institution of this lawsuit, the Commission's representatives attempted

eliminate the unlawful emplo¡,ment practices alleged below and

to

effect voluntary

compliance with Title

VII, the EPA, and the ADEA through informal methods of conciliation,

conference and persuasion.

STATEMENT OF CLAIMS

8.

More than thirfy days piior to the instihrtion of this lawsuit, Catheríne I{erridge

filed a charge of discrimination with the Commission alleging violations of Title VII, the EPA
and the ADEA by Defendant.
been fulfilled.

All

conditions precedent to the institution of this lawsuit have

g.

From around May 2008 until around June 2009 Defendant engaged in an unlawfut

employment practice ât its Washington, D.C. facility in violation of Section 7Oa@) of Title Vtr, 42 U.S.C. $ 2000e-3(a); Section 15(a)(3) of the FLSA' 29 U.S.C. 9215(aX3); and Section a(d) of

the ADEA, 29 U.S.C. $ 623(d) when
language

it

retaliated against llerridge

by placing retaliatory

in

Herridge's employment contract and refusing

to

remove

it

over Herridge's

objections during contract negotiations.

10.

More specifically, beginning in or around November 2006 and continuing through

March 2008, Herridge made oo-".oo, cornplaiuts to Defendant about its employment practices that she believed were discriminatory. Specifically, in November 2006 Herridge complained to
Defendant's Bureau Chief that female and black conespondents were given less desirable shifts.

In or around lanuary' 2007, Herridge complained to Defendant's CEO that Defendant's
agreement with her that she receive a*tnal run" as an Anchor was not being honored because

of

her sex, -female and age, then

42. In or around December 2007, Herridge

complained to

Defendant's Bureau Manager that after she was given a trial run as Anchor she was reassigued

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from Anchor to Repor[er and other assignments were being taken away from her because of her
age, then 43, sex/female, and because of he¡ prior opposition to discrimination. In December

2007, Henidge also made this oomplaint to Defendant's Senior Vice-President for Legal and
Business Affairs.

11.

From around Decomber 2007 until around March 2008, Defendant's Senior Vice

President'conducted an internal investigation of the allegations

of discrimination made by

Herridge. On or about February 7,2008, in an email to the Vice President, Herridge questioned
whether the investigation was thorough or impartial. The next da¡ Defendant's CEO sent out a
company-\ryide email criticizing employees who complain and which appeared to be in response

to Herridge's complaints of age and sex discripination. A-fter the investigation was completed
on March 17,2008, and Henidge was notified by Defendant's Vice President that no evid.ence

of

discrimination had been found, Herridge disputed the findings and expressed her concem to
Defendant's Vice President that the outcome of the investigation was predetermined.

72.

Sometime between May 2008 and August 2008, Herridge received a draft of her

employment contract which was up for renewal. The contract was v6ry similar to Herrid.ge's previous contracts except that it contained a direct reference to Herridge's internal comptaints

of

discrimination. Specificalt¡ the confact contained.language that Herridge will never serve as alr Anchor/Co-Anchor

or an occasional Anchor/Co-Anchor during the contract term unless

Defendant at its sole discrotion decides otherwise. Further, the proposed contract stated that both Herridge and Defendant aclalowledged that Herridge "has ¡aised allegations of discrimination in the past concerning her non-assignment to anchor positions and conceming other matters, and
that Fox has investigated" Horridge's allegations and that Henidge and'Tox also acknowiedge that Fox has determined that discrimination did not occur and that [Henidge] did not agree with

Fox's determination,"

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13.
was placed

This ¡etaliatory language constituted an adverse action against Henidge because it

in Henidge's

employment contact because

of her previous complaints of

discrimination, lilas intended by Defendant to dissuade Herridge from making further complaints

of

employment discrimination and would have dissuaded a reasonable person from making
as retaliatory

frrther complaints of emplolment discrimination. Herridge viewed the language
and as an attempt to intimídate her from filing any fiuttrer complaints

of discrimination.

Henidge shared this view with Defendant, however Dofendant insisted that the conüact include
the retaliatory language regarding Herridge's claims of discrimination. Henidge refused to enter

into an employmrent contraot that included the retaliatory language.. Contract negotiations stalled
a¡ound November 2008 when Defendant stopped responding to inquiries made by or on behalf

of

Henidge concerning the status of the negotiations.

14.
I¡

Herridge fiIed a charge of discrimination with the Commission in the fall of 2008.

late April 2009 the Commission conducted an on-site investigation. Thoreafter around May 8,
fr. om

2009, Defendant removed the disputed language

Herridgers contract. On or about June 18,

2009, Herridge signed a new employment contract that did not contain any reference to her prior

allegations of employment discrimination and set her salary at the level originally proposed by
Defendant.

15.

Henidge worked without the benefit

of an employment

contract for

approximately nine months, during which time sho was constantly in fear of being discharged, losing her livelihood and losing her medical insurance benofi.ts, among other things.

16. . The effect of the practices complained of above has been to deprive Henidge of
equal employment opportunities and otherwise adversely affect her emplolære,nts status.

L7.

The unlawfi.ll enrployment practices complained

of above were intentional.

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18.

The unlawful employnent practices complained of above were done with malice

or with reckless indifference to the federally protected dghts of Henidge.

PRAYER FOR RELIEF
'Wherefore, the Commission respectfully requests that this Court:

A.

Grant a permanent iqiunction enjoining Defendant, its officers, agents, servants,

employees, attornoys, and

all

persons

in

active conoert or participation with

it,

from

discriminating against an any employee because the employee has opposed any praotice made unlawfirl under Title Vtr, the EPA and the ADEA, or has made a oharge, filed a complaint or has
caused to be instituted any proceeding, assisted or participated in any manner in an investigation,

proceeding or litigation under these statutes.

B.

Order Defendant to institute and carry out policies, practices, and programs that

provido equal employmeut opportunities for employees who oppose, or have opposed unlawful
employment practices or otherwise engage in protected activity under Title
eradicate the effects of its past and present unlawful employment practices.

VII,

and which

C.

Order Defendant to make Henidge whole by providing compensation for past and

future pecuniary iosses resulting from the u¡lawful employment practices described abovg in
amounts to be determined at trial.

D.

Order Defendant to make Henidge whole by providing compensation for past and

future non-pecuniary losses resulting from the unlawful praotioes complained of above, including

emotional pain, suffering, inconvenience, frustration, ioss

of

enjo¡rment

of life,. humiliation,

inconvenience, and loss of civil rights, in amounts to be determined at trial.

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E.

Order Defendaut to pay Herridge punitive damages for its malicious and reckless

conduct described above, in arnounts to be determined at trial. F. interest.

Grant.such fi¡rther relief as the Court deems necessary and proper in the public

G.

Award the Commission its costs of this action.
JURY TRIAL DEMAND

The Commission requests

a

jury hial on all questions of fact raised by its oomplaint.

Dated

thrsþjayof

September, 20 1 0. Respectfu lly submitted,

EQUAL EMPLOYMENT OPPORTI-INITY COMMISSION
P.

DAVID LOPEZ

General Counsel

JAMES L. LEE Deputy General Counsel G\A/ENDOLYN YOUNG REAMS Associate General Counsel

Washington Field Office 131 M Street, N.E. Washington, D.C. 20507

LYNETTE A. BARNES Regional Attorney Charlotte Dishict Offi oe 129 ïV. Trade Street, Suite 400 Charlotte, N.C. 28202 ATTORNEYS FOR PLAINTIFF