766 F.2d 1205 (8th Cir. 1985), 84-1336, Craft v. Metromedia, Inc.

Docket Nº:84-1336, 84-1380.
Citation:766 F.2d 1205
Party Name:27 Wage & Hour Cas. (BN 353, Christine A. CRAFT, Appellee/Cross-Appellant, v. METROMEDIA, INC., Appellant/Cross-Appellee.
Case Date:June 28, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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766 F.2d 1205 (8th Cir. 1985)

27 Wage & Hour Cas. (BN 353,

Christine A. CRAFT, Appellee/Cross-Appellant,

v.

METROMEDIA, INC., Appellant/Cross-Appellee.

Nos. 84-1336, 84-1380.

United States Court of Appeals, Eighth Circuit

June 28, 1985

Submitted Jan. 14, 1985.

As Modified on Denial of Rehearing and Rehearing En Banc

Aug. 19, 1985.

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[Copyrighted Material Omitted]

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Donald W. Giffin, Kansas City, Mo., for appellant/cross-appellee.

Dennis E. Egan, Kansas City, Mo., for appellee/cross-appellant.

Before LAY, Chief Judge, and McMILLIAN and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Christine Craft was reassigned from coanchor to reporter by KMBC-TV in Kansas City, Missouri, and as a result brought this action against the station's owner and operator, Metromedia, Inc. Craft alleged that she had been discriminated against on the basis of sex in violation of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982), and the Equal Pay Act of 1963, 29 U.S.C. Sec. 206(d) (1982), and that she had been fraudulently induced into accepting the KMBC employment. The primary focus of the suit was KMBC's concern with appearance--whether the station's standards for on-air personnel were stricter and more strictly enforced as to females than as to males and whether the station misrepresented to Craft its intentions as to changing her appearance to persuade her to accept the anchor job. The district court 1 found against Craft on her

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Title VII sex discrimination claim and refused a new trial as to the jury verdict against her on her equal pay claim. The court, however, set aside as excessive the jury verdict in Craft's favor on the fraud claim and ordered a new trial. Craft v. Metromedia, Inc., 572 F.Supp. 868 (W.D.Mo.1983). Craft appeals from these rulings while Metromedia appeals from the judgment on the jury verdict, again in Craft's favor, in the second fraud trial. We affirm the Title VII and Equal Pay Act judgments against Craft but further conclude that she did not make a submissible case on her fraud claim and thus reverse the judgment against Metromedia on that issue.

Christine Craft commenced her television career in mid-1975 as a weeknight weather reporter at a small station in Salinas, California. After about a year and a half, during which she also worked as an announcer, reporter, and substitute sportscaster, she became the weekend weather anchor at a San Francisco television station. She spent a year there, again handling some additional news and substitute sports assignments.

Craft then was hired by Columbia Broadcasting System to host the "Women In Sports" portion of its network television program "CBS Sports Spectacular." At the network's behest she had her hair cut short and bleached blond. She was required to use black eyebrow pencil and dark red lipstick, and a CBS technician applied heavy makeup before every on-air appearance. "Women in Sports" was discontinued after thirty weeks, and Craft returned to California.

About a year later Craft resumed her television career as a reporter at a station in Santa Barbara, California. She remained there, also serving as coanchor of the late news and occasionally doing sports and weather, until December 1980, when she began work at KMBC.

KMBC, having slipped in its local news ratings, had determined to adopt the coanchor format used by its two major competitors in Kansas City. Furthermore, it had determined that, because of the perceived "coldness" of its anchor, Scott Feldman, the new position was to be filled by a female to "soften" its news presentation. The station obtained tapes of a number of performers, including Craft, from Media Associates of Dallas. After studying these tapes, KMBC news director Ridge Shannon contacted Craft, among other individuals, to see if she was interested in auditioning for the job. Craft described her unpleasant experience at CBS and made plain that she was not interested if KMBC intended a "makeover" of her appearance. She continued to stress this point while in Kansas City for the audition, and Shannon and R. Kent Replogle, vice president and general manager of KMBC, assured her they planned no changes such as those at CBS. Shannon did mention that KMBC made some use of consultants, and Craft indicated some willingness to work on her appearance and dress.

Craft accepted the coanchor position at KMBC and at the station's request stopped in Dallas for a meeting with Lynn Wilford of Media Associates before reporting to Kansas City. She made her debut as coanchor on January 5, 1981, and the testimony is essentially uncontradicted that Shannon and Replogle immediately began having concerns about her clothing and makeup. Wilford came to Kansas City on January 14 to work with Craft on dress as well as on various aspects of her presentation technique. It was during this visit that Wilford for the only time applied Craft's makeup, and the results on the 6 p.m. news were so unsatisfactory that Craft was allowed to remove the makeup before the 10 p.m. broadcast.

In the following months Shannon continued to make occasional suggestions or criticisms as to certain articles of Craft's clothing, and Craft was provided with materials, including the book Women's Dress for Success, on wardrobe and makeup. Then, beginning in April, KMBC arranged for Macy's Department Store to provide clothing for Craft in exchange for advertising time. Craft was assisted by a consultant

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from Macy's in selecting outfits. She would then return to the KMBC studio, try on the clothing, and appear before camera so tapes could be made to send to Wilford for review.

On May 19 and 20, 1981, Media Associates initiated some research of viewer perceptions of KMBC's newscasts by conducting four "focus group" discussions. By this technique groups of ten individuals viewed sample video tapes of local news programs and then gave their reactions in sessions moderated by a Media Associates representative. The response to Craft's appearance was, as summed up by the district court, "overwhelmingly negative." 572 F.Supp. at 873. When Replogle and Shannon met with Craft the following day to discuss this result, Craft at first wanted to be let out of her contract to return to California. Replogle, however, stated that management was ready to work with her to overcome the problems, and Craft ultimately agreed to cooperate. Thereafter, her wardrobe was more closely supervised, and the "clothing calendar" 2 then mentioned by Replogle was eventually instituted in late July or early August.

As a further follow-up, KMBC and Media Associates in late June conducted a telephone survey of some 400 randomly selected persons in the greater Kansas City viewing area. These persons were asked to respond to a questionnaire specifically drafted to pursue issues raised in the focus group discussions. For example in one segment the survey participants were asked to rank Craft in comparison with the female coanchors at KMBC's competitors in response to some fourteen statements, four of which dealt with "good looks" or the dress of and image of a "professional anchor woman." Craft came out trailing in almost every category. Media Associates' report on the results of this survey, which was conveyed to Shannon and Replogle on August 3, 1981, suggested that Craft was having an extremely adverse impact on KMBC's acceptance among Kansas City viewers. On August 13 Media Associates recommended that Craft be replaced, and KMBC, after initial resistance, agreed.

The next day Shannon told Craft she was being reassigned to reporter at no loss of pay or contractual benefits. He characterized the results of the research, in the language of the district court, as "devastating and unprecedented in the history of the consultants of Media Associates." 572 F.Supp. at 874. Craft states that Shannon also told her she was being reassigned because the audience perceived her as too old, too unattractive, and not deferential enough to men. Shannon, however, specifically denies making such a statement, and the district court believed his version of the conversation. Id.

After the weekend Craft sent a telegram to KMBC refusing to accept reassignment, and when further discussions failed to resolve the matter, she returned to Santa Barbara where on September 1, 1981, she commenced work as a coanchor at the television station at which she previously had been employed. This suit followed in four counts: the Title VII sex discrimination and the fraud counts, the allegation of violation of the Equal Pay Act based on the differential between Craft's and Scott Feldman's salaries, and an allegation of prima facie tort based on an intent by KMBC to injure Craft. This last count was abandoned during the first trial in Kansas City.

Following that first trial the district court rejected the findings of the advisory jury 3 on the Title VII sex discrimination claim and entered judgment for Metromedia on that issue. The district court found that KMBC required both male and female on-air personnel to maintain professional,

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businesslike appearances "consistent with community standards" and that the station enforced that requirement in an evenhanded, nondiscriminatory manner. 572 F.Supp. at 877-78. Any greater attention to Craft's appearance, the court concluded, was "tailored to fit her individual needs" and was necessary because of her "below-average aptitude" in matters of clothing and makeup. Id. at 878. The district court also found that Craft had not been constructively discharged because there was insufficient evidence that her working conditions had become so intolerable that she had no choice but to quit or that KMBC had intended to...

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