108 F.3d 832 (8th Cir. 1997), 94-3622, Ryther v. KARE 11

Docket Nº:94-3622.
Citation:108 F.3d 832
Party Name:C. Thomas RYTHER, Plaintiff-Appellee, v. KARE 11, an NBC Affiliate; Gannett Co., Inc., Defendants-Appellants.
Case Date:March 06, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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108 F.3d 832 (8th Cir. 1997)

C. Thomas RYTHER, Plaintiff-Appellee,


KARE 11, an NBC Affiliate; Gannett Co., Inc., Defendants-Appellants.

No. 94-3622.

United States Court of Appeals, Eighth Circuit.

March 6, 1997

Submitted Oct. 22, 1996.

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[Copyrighted Material Omitted]

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Thomas W. Tinkham, argued, Minneapolis (Karen L. Clauson, on the brief), for defendants-appellants.

Donna L. Roback, argued, Bloomington (Marcy R. Kreisman, on the brief), for plaintiff-appellee.


LAY, Circuit Judge. [*]

This age discrimination case comes before this court on a rehearing en banc. Our earlier panel opinion, affirming the district court's denial of a new trial and the denial of a post-verdict motion for judgment as a matter of law, appeared in 84 F.3d 1074 (8th Cir.1996). At oral argument before the court en banc, KARE 11, which appeals from the judgment of the district court, challenged only the sufficiency of the evidence and argued that the plaintiff failed as a matter of law to make a submissible case to the jury. Because we deem this issue to be the significant claim on appeal, and in order to clarify the standard to be followed in this circuit in age discrimination cases, primarily we address that issue.

KARE 11, a Twin Cities television station, refused to renew C. Thomas Ryther's contract as lead sportscaster for a fifth three-year term. In 1991, when Ryther was terminated, he was fifty-three years old. Ryther sued KARE 11 and its parent, Gannett Co., Inc. (collectively "KARE 11"), alleging a violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Following a jury verdict in Ryther's favor, the district court, the Honorable David S. Doty presiding, denied a motion for a new trial and, alternatively, a motion for judgment as a matter of law. The court entered judgment awarding Ryther $1,254,535 in back pay, front pay, liquidated damages, and attorneys' fees. See Ryther v. KARE 11, 864

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F.Supp. 1510 (D.Minn.1994). KARE 11 appeals. This court, acting en banc, now affirms the judgment of the district court.


Ryther served as a sports anchor for Channel 11 from December 1979 until July 1991, pursuant to a series of four three-year contracts. Gannett/KARE 11 purchased the station in 1983, and in 1988 Janet Mason became KARE 11's vice president of news. At that time, the sports department's members included Jeffrey Passolt and Randy Shaver, both under age forty. In the summer of 1988, Ryther was approximately fifty years of age. Ryther's responsibilities began changing that year, shortly after Mason's appointment to vice president. KARE 11 removed Ryther from Prep Sports Extra, a program he then co-anchored with Shaver, and during 1989, the year in which Linda Rios Brook became station manager, Mason removed Ryther from the six o'clock news and assigned him to a recreational segment on the five o'clock news. Passolt replaced Ryther as sports anchor during the six o'clock time slot. In May 1990, Shaver was named executive producer of sports, a position to which Ryther was entitled under his contract. Shaver assumed many of Ryther's organizational and planning duties.

On March 6, 1991, shortly after Ryther discovered he was being excluded from promotional photos, Ryther confronted Mason about the status of his contract. Mason told him his contract would not be renewed because he had failed in the market research. After several events detailed in the district court's opinion, 864 F.Supp. at 1515-16, Ryther left KARE 11 and filed this lawsuit.

The decision not to renew Ryther's contract was made by Rios Brook, Richard Modig, Vice President of Broadcast Operations, and Mason. When Rios Brook was asked at trial what market research she relied on in making the decision about Ryther, she responded that it was the "Gallup" research, in reference to a survey conducted for KARE 11 in June 1990 by the Gallup Organization ("1990 Gallup Survey"). Tr. IV-136. Mason, similarly, said that she arrived at that decision after she got the 1990 Gallup Survey. Tr. V-194, V-197.

In earlier years, 1981 and 1989, the Atkinson-Farris Communications research firm ("Atkinson") performed market research to determine KARE 11's ratings. In 1990, in part because KARE 11 found the Atkinson research incomplete, KARE 11 sought new market research by commissioning the 1990 Gallup Survey. The 1990 Gallup Survey reported that Ryther had seventy-six percent viewer recognition, whereas Mark Rosen, a sportscaster at competitor WCCO, had eighty-one percent recognition. Rosen was rated number one and Ryther number two in the overall Twin Cities' market. The 1990 Gallup Survey reported that Ryther "underperform[ed]" and that he was not a strong player for KARE 11.

KARE 11 urges that Mason, Rios Brook, and Modig made the decision not to renew Ryther's contract in August 1990, upon receipt of the 1990 Gallup Survey. The primary issue at trial was whether the overall market research was the true reason for Ryther's dismissal, or merely a pretext for age discrimination. Ryther asserts that he offered evidence to show that the market research was not the true reason for his dismissal, that in fact the decision to dismiss him was made prior to that time, and that the research was biased and merely a pretext for unlawful age discrimination.

The district court, in denying KARE 11's motion for judgment as a matter of law, carefully summarized the evidence from which a jury could reasonably find that the proffered reason for refusing to rehire Ryther masked discrimination. Judge Doty found that there was sufficient evidence for the jury reasonably to conclude that: the defendants made the decision not to renew Ryther's contract before the 1990 Gallup Survey; some of Ryther's duties had been transferred to younger people and Ryther's contract was not renewed despite positive performance evaluations from KARE 11; KARE 11 deceived Ryther by leading him to believe that his work was commendable, in order to prevent him from improving upon his alleged deficiencies; the 1990 Gallup Survey was purposely designed so that Ryther would not

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get a fair rating, thus masking the discriminatory reason for his termination; and KARE 11 provided a hostile work environment for Ryther because of his age. Ryther, 864 F.Supp. at 1715-18.

It is well settled that we will not reverse a jury's verdict for insufficient evidence unless, after viewing the evidence in the light most favorable to the verdict, we conclude that no reasonable juror could have returned a verdict for the non-moving party. Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir.1996).


The law governing the allocation of evidentiary burdens in discrimination cases is well established. See generally St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-12, 113 S.Ct. 2742, 2747-50, 125 L.Ed.2d 407 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06, 93 S.Ct. 1817, 1823-26, 36 L.Ed.2d 668 (1973). Since Hicks, this court has applied Hicks, Burdine, and McDonnell Douglas to several age discrimination cases. However, for the sake of guidance to the bar and district courts, we take this opportunity, sitting en banc, to unify and clarify our understanding of the Supreme Court's standard. The facts presented here, as in Hicks, fall under a standard that does not require proof of direct discrimination for the plaintiff to make a submissible case for the jury. 1

In discrimination cases, it is now well settled that a plaintiff's presentation of a prima facie case creates a legal presumption of unlawful discrimination. This presumption places an obligation upon the employer to produce evidence of a legitimate, nondiscriminatory reason for the plaintiff's discharge. If the employer carries this burden, the legal presumption of unlawful discrimination "drops out of the picture." Hicks, 509 U.S. at 511, 113 S.Ct. at 2748; accord Burdine, 450 U.S. at 254 & n. 7, 255, 101 S.Ct. at 1094 & n. 7, 1095. Once this occurs, the Supreme Court articulated the overall process:

The defendant's "production" (whatever its persuasive effect) having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven "that the defendant intentionally discriminated against [the plaintiff]", [Burdine, 450 U.S. at 253, 101 S.Ct. at 1093]. The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such rejection, "[n]o additional proof of discrimination is required," 970 F.2d, at 493 (emphasis added).

Hicks, 509 U.S. at 511, 113 S.Ct. at 2749 (footnote omitted).

Thus, according to Hicks, when the plaintiff's evidence of pretext challenges the defendant's articulated nondiscriminatory reason, such evidence may serve as well to support a reasonable inference that discrimination was a motivating reason for the employer's decision. As the Supreme Court has observed, "when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reasons, based his decision on an impermissible consideration such as [age]." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d...

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