Donner v. Fox News Network, LLC

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JASON DONNER, Plaintiff, v. FOX NEWS NETWORK, LLC, Defendant.

No. 23-cv-3401 (CRC)

United States District Court, District of Columbia

April 24, 2024

MEMORANDUM OPINION AND ORDER

CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE

“There can be no higher law in journalism,” the renowned newspaper columnist Walter Lippmann once observed “than to tell the truth and to shame the devil.” WALTER LIPPMANN, LIBERTY AND THE NEWS 4 (1920). Lippmann surely captured a basic “law” of journalism. But when it comes to employment law in the District of Columbia the allegation that a journalist was terminated for insisting that his network report the truth and hold wrongdoers accountable does not amount to an actionable claim.

Plaintiff Jason Donner, a former Capitol Hill producer for Defendant Fox News Network (“Fox News” or “Fox”), alleges he was fired for opposing Fox's false reports of voter fraud in the 2020 election and inaccurate coverage of the riot at the Capitol on January 6, 2021. One year to the day after his dismissal, Donner filed this lawsuit against Fox. His amended complaint advances three sets of claims. First, Donner claims he was discriminated and retaliated against based on his “political affiliation,” in violation of the D.C Human Rights Act (“DCHRA”), D.C. Code § 2-1401 et seq., for refusing to align himself with former President Trump and the “MAGA faction of the Republican Party.” Second, Donner asserts a wrongful termination claim against Fox on the ground that it violates public policy to fire a journalist for speaking out against dishonest reporting that undermines confidence in the U.S. electoral system and endangers our democracy. Third, Donner argues that even Fox News' “pretextual” reason for firing him-that he called in sick one day in September 2022-violates the D.C. Accrued Sick and Safe Leave Act (“Sick Leave Act”), D.C. Code § 32-531.01 et seq. Fox has moved to dismiss the amended complaint in full under Federal Rule of Civil Procedure 12(b)(6).

The Court will, in the main, grant Fox's motion. On the DCHRA claim, Donner has not plausibly alleged that he was discriminated against because of his “political affiliation,” which is narrowly defined as membership in or endorsement of a political party, or that his termination was reprisal for engaging in any protected activity. At most, the amended complaint suggests Donner may have been fired due to his political disagreements with Fox's management and for voicing concerns about the journalistic integrity of the network's programming. Regardless of whether Donner was justified in speaking out, however, his allegations do not support a claim under the DCHRA. In the same vein, Donner also has not alleged a viable claim of wrongful termination because he was an at-will employee and has not identified an established public policy that Fox violated when firing him. By contrast, Donner fares better when it comes to his contention that Fox violated the Sick Leave Act when it purportedly fired him for staying home one workday. Though Donner surmises that this stated reason was a fig leaf for punishing him for protesting the network's inaccurate news coverage, the allegation that Fox expressly told Donner that he was being cashiered for failing to show up to work after he had called in sick is sufficient to state a plausible claim of retaliation under the Act. The Court will therefore grant Fox's motion in part and deny it in part.

I. Background

The Court draws the following background from Donner's complaint. Fox News no doubt contests many of his allegations.

Donner began working for Fox News in 2010 as a Desk Assistant. FAC ¶ 6. Over the next decade, he was steadily promoted to Associate Producer, Producer, and then Capitol Hill Producer starting in 2018. Id. As the Capitol Hill Producer, he was tasked with reporting on the never-ending political news cycle inside the Beltway. Id. In his telling, Donner “prided himself on his journalistic standards of reporting truthfully and accurately” and was widely “recognized on Capitol Hill as a reporter always asking hard questions to politicians on both sides of the political spectrum.” Id. ¶ 7. “While he did not share many of the views expressed by Fox News' Opinion page, or the evening hour television commentators,” he insists that this difference of opinion “did not impact his ability to report on Capitol Hill.” Id. But that all changed after the 2020 election. Id. ¶ 8.

The supposed shift started after Fox News became the first major media outlet to call closely contested Arizona for President Joe Biden in November 2020-a move that reportedly angered many Fox News viewers, including then-President Trump. Id. “Facing backlash from Trump supporters,” Donner alleges, “Fox News immediately capitulated to President Trump and his supporters by firing Chris Stirewalt, the onscreen reporter during the projection for Arizona.” Id. Bill Sammon, the Vice President and D.C. Managing Editor who oversaw the decision to call Arizona, followed suit by retiring in the face of criticism from Fox executives over his handling of the network's election coverage. Id. “Shortly thereafter, approximately 20 journalists were laid off due to what Fox News called a realignment of ‘business and reporting structure to meet the demands of this new era.'” Id. This “realignment” was backed by corporate leadership- including the CEO of Fox News, Suzanne Scott, and the CEO of the parent company, Lachlan Murdoch-who sought to regain viewer trust by becoming “the bullhorn for President Trump's Make America Great Again (‘MAGA') faction of the Republican Party.” Id. ¶¶ 9-10.

Consistent with that new strategy, “[i]n the days after the 2020 election, Fox News' reporting became focused on the unsubstantiated stolen election conspiracy advanced by President Trump's supporters.” Id. ¶ 16. These “stolen election” stories that Fox News aired were patently false, Donner alleges, citing Dominion Voting Systems' (“Dominion”) defamation lawsuit against the network, which unearthed communications between Fox News executives and reporters openly acknowledging that the election conspiracies that Fox had amplified were meritless. Id. (citing US Dominion, Inc. v. Fox News Network, LLC, 293 A.3d 1002 (Del. Super. Ct. 2023)). And still, top brass at Fox News continued to pressure reporters to push “election fraud claims.” Id. The D.C. Bureau Chief, Bryan Boughton, allegedly told Donner in December 2020 that their “reporting [was] going to change,” as the network was embracing a “different focus.” Id. ¶ 19. Donner took this as a clear signal that “management was looking to appease the MAGA faction of the Republican party.” Id.

Those who resisted suffered the consequences, as “Fox's corporate leadership purged the news division [of] those reporters who spoke out against claims of election fraud.” Id. ¶ 10. They included prominent on-screen personalities. Geraldo Rivera, a longtime host and correspondent at Fox, reportedly griped that he was “muzzled” and suspended three times for “complaining about Tucker Carlson, when he had the outlandish theory that January 6 was staged.” Id. ¶¶ 12-13. News anchor Chris Wallace, meanwhile, left Fox News soon afterward because he purportedly found the network's false reporting about the 2020 election and the January 6 riot “unsustainable.” Id. ¶ 11. Donner claims this “purge in the news division came from the top all the way down to the on-the-ground reporters, such as [him].” Opp'n at 5.

It started soon after the 2020 election, Donner says. On November 19, 2020, Fox News aired a press conference where Rudy Giuliani and Sidney Powell falsely claimed that Dominion had perpetrated voter fraud to steal the election from President Donald Trump. FAC ¶ 17. Fox's White House correspondent Kristen Fisher responded on air by informing viewers: “That was certainly a colorful news conference from Rudy Giuliani, but it was light on facts.... So much of what he said was simply not true, or has already been thrown out in court.... The Trump campaign has yet to provide . . . hard evidence of voter fraud and irregularities widespread enough to overturn the outcome of the election.” Id. Fischer was allegedly reprimanded for this basic fact-checking by Boughton, who “emphasized that higher-ups at Fox News were also unhappy with it” and instructed her “to do a better job . . . ‘respecting [Fox's] audiences.'” Id.

Donner, who attended the press conference, suffered a similar fate when he posted on social media: “At this presser, Rudy Giuliani keeps claiming voter fraud in Philadelphia, but he said this to a Pennsylvania court: ‘This is not a fraud case.'” Id. ¶ 18. Later that day, Donner's direct supervisor, Anita Siegfriedt, “reprimanded Donner for the tweet, stating that [he] was not permitted to tweet . . . his ‘opinions.'” Id. After Donner protested that his commentary was not opinion, but rather a verifiable fact, Siegfriedt purportedly responded that she would “let it go” but admonished Donner to be “careful moving forward.” Id. Donner construed this as a warning from “upper management” and feared that he now “had a target on his back.” Id.

Things worsened two months later. In the run up to the congressional certification of the presidential election results, Donner recounts that Fox regularly aired conspiracy theories about election fraud aimed at riling up Trump supporters. Id. ¶ 20. On the fateful day of January 6 2021, when Congress was set to certify the results, “Donner was inside the U.S. Capitol in the Fox News booth above the Senate Radio-TV Gallery Studio to report on the certification” when rioters breached the Capitol building. Id. ¶ 21. Even after D.C. Metropolitan Police declared a “riot” and Vice President...