Jurado v. Eleven-Fifty Corp.

• Decision Date: 02 April 1987
• Docket Number: ELEVEN-FIFTY,KIIS-F,No. 86-5606,L,86-5606
• Citation: 813 F.2d 1406
• Parties: 43 Fair Empl.Prac.Cas. 870, 42 Empl. Prac. Dec. P 36,960, 55 USLW 2598, 106 Lab.Cas. P 12,310 Valentine JURADO, aka Val Valentine, Plaintiff-Appellant, v.CORPORATION, a Delaware Corporation d.b.a. Radio Stationos Angeles; the Pacific and Southern Company, Inc., a Delaware Corporation; Combined Communications Corporation, an Arizona Corporation; Gannett Company, Inc., a Delaware Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1406

813 F.2d 1406

43 Fair Empl.Prac.Cas. 870,

42 Empl. Prac. Dec. P 36,960, 55 USLW 2598,

106 Lab.Cas. P 12,310

Valentine JURADO, aka Val Valentine, Plaintiff-Appellant, v. ELEVEN-FIFTY CORPORATION, a Delaware Corporation d.b.a Radio Station KIIS-FM, Los Angeles; the Pacific and Southern Company, Inc., a Delaware Corporation; Combined Communications Corporation, an Arizona Corporation; Gannett Company, Inc., a Delaware Corporation, Defendants-Appellees.

No. 86-5606.

United States Court of Appeals Ninth Circuit.

Submitted on Briefs Jan. 8, 1987.

Decided April 2, 1987.

William A. Snyder, Irvine, Cal., for plaintiff-appellant.

Robert L. Murphy, Leslie A. Swain, Diane J. Crumpacker, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before FERGUSON, BOOCHEVER and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Valentine Jurado appeals a summary judgment denying his race and national origin discrimination claims under 42 U.S.C. Sec. 1981 (section 1981) and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. Secs. 2000e to e-17, and his claims for breach of a collective bargaining agreement under section 301 of the Labor Management Relations Act (LMRA Sec. 301), 29 U.S.C. Sec. 185. Jurado's claims stem from his discharge as a disc jockey by defendant owners and operators of Los Angeles radio station KIIS-FM (collectively "KIIS") after KIIS told him to broadcast only in English. We affirm.

FACTS

Jurado is a radio announcer of Mexican-American and Native-American descent who is bilingual in Spanish and English. He began performing as a disc jockey at KIIS under the name "Val Valentine" in 1977. For several years, he broadcasted in English only. At the request of the then program director, Jurado started using some "street" Spanish words and phrases on the air in an effort to attract Hispanic listeners. A consultant later concluded that the bilingual format hurt KIIS' ratings because it confused listeners about KIIS' programming, the rest of which was in English. After reviewing the station's Arbitron ratings, which showed no increase in the program's target Hispanic audience, the new program director, Donald Benson, agreed with the consultant's recommendation. On August 27, 1981, Benson told Jurado to stop speaking Spanish on the air, assuring Jurado of continued employment if he complied. What happened the next day is disputed. Jurado claims he was fired without an opportunity to comply with the order. KIIS contends that Jurado quit, but for the purpose of summary judgment admits that he was fired for refusing to comply.

Jurado brought an action against KIIS in federal district court under, inter alia, section 1981, alleging in part that KIIS fired him for his refusal to comply with its instructions to cease broadcasting in Spanish. The district court dismissed the complaint with leave to amend, in part because a dismissal resulting from a voluntary refusal to abide by that instruction was not actionable under section 1981. Jurado then filed a first amended complaint under 42 U.S.C. Secs. 1981, 1985(3) and 1986, Cal.Gov't Code Sec. 12940(a), and LMRA Sec. 301, alleging that KIIS discharged him without giving him an opportunity to conform his broadcast format to the English-only format. The district court held that these allegations stated a section 1981 claim. Jurado later filed a supplemental complaint adding claims under Title VII. The district court dismissed the LMRA Sec. 301 claims for lack of jurisdiction. The court later granted KIIS' motion for summary judgment of the section 1981, Title VII and Cal.Gov't Code Sec. 12940(a) discrimination claims because: (1) Jurado had not shown retaliation, disparate treatment, or disparate impact in his employment; and (2) KIIS' actions were protected under the First Amendment and section 326 of the Communications Act of 1934, 47 U.S.C. Sec. 326. Jurado v. Eleven-Fifty Corp., 630 F.Supp. 569 (C.D.Cal.1985). Jurado timely appeals the judgment of his LMRA Sec. 301, Title VII and section 1981 claims. We have jurisdiction under 28 U.S.C. Sec. 1291.

STANDARD OF REVIEW

We review a grant of summary judgment de novo, and will affirm only if, viewing the evidence most favorably to the nonmoving party, there are no genuine issues of material fact and the district court correctly applied the substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

DISCUSSION

I. TITLE VII DISPARATE TREATMENT

Jurado contends that KIIS discharged him in violation of Title VII based on a disparate treatment theory. To prevail he must ultimately prove that KIIS intended to discriminate against him in the dismissal. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). In a disparate treatment case, we apply the analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973):

[A] plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.

Yartzoff v. Thomas, 809 F.2d 1371, 1373-74 (9th Cir.1987) (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1005 (1985), amended, 784 F.2d 1407 (9th Cir.1986)). To establish a prima facie case of disparate treatment, the employee must offer evidence that "give[s] rise to an inference of unlawful discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; Yartzoff, 809 F.2d at 1374. Failure to allege "specific facts" that establish the existence of a prima facie case renders a grant of summary judgment appropriate. Yartzoff, 809 F.2d at 1374; Palmer v. United States, 794 F.2d 534, 536-39 (9th Cir.1986); see Fed.R.Civ.P. 56(e). Jurado's prima facie disparate treatment case fails because there is insufficient evidence that KIIS discharged him for discriminatory motives.

There is no genuine dispute that Jurado was fired for refusing to comply with KIIS' decision to change his format to English only, after KIIS assured him of continued employment if he did so. Jurado alleged in his amended complaint that he was fired without the opportunity to conform to the format change. However, Jurado stated in an affidavit to the National Labor Relations Board (NLRB) that:

Benson wanted me to stop speaking Spanish altogether. I did not comply with Benson's wishes because it would Also, in his original unverified complaint he stated that he was fired for refusing to give up his bilingual format. Further, his counsel filed a statement of position with the Equal Employment Opportunity Commission (EEOC) in 1982 which stated: "[Jurado] was given the ultimatum that he change his character into a solely english [sic] speaking character, or be terminated from employment. [Jurado] refused to accede to management's demand and was terminanted [sic] from employment on August 27, 1981." Jurado's NLRB affidavit statement shows that there is no genuine dispute that Jurado was fired for refusing to comply with the English-only order. The party opposing summary judgment cannot create a genuine question of fact by contradicting his prior sworn statement. See Foster v. Arcata Assocs., 772 F.2d 1453, 1462-63 (9th Cir.1985) (party's declaration contradicting her deposition created no genuine issues of fact and summary judgment appropriate), cert. denied, --- U.S. ----, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986).

have taken my character away. He told me to speak English or quit. I told him I would not quit, he would have to fire me. I refused to give up my bi-lingual presentation. We talked for a while and finally he suggested that we talk the next day.

Jurado nevertheless argues that the English-only order itself was racially motivated and that his refusal to comply with it was therefore not a proper ground to discharge him. We need not decide whether an employee's refusal to comply with a racially motivated order states a Title VII claim, for we find insufficient evidence that the English-only order was racially motivated. There is no genuine dispute that the order was a programming decision motivated by marketing, ratings, and demographic concerns. The evidence shows that KIIS adopted Jurado's bilingual format to improve his show's performance, and later dropped it in response to a study of the show's market and ratings. Benson, the program director, was worried that the bilingual format might cause listeners to become confused about the nature of KIIS' programming and lose interest in the station. Also, the bilingual format had not improved KIIS' performance in the target Hispanic community.

Jurado claims that there is evidence that the order was racially motivated. He notes that a consultant wrote in reference to Jurado's program that KIIS was "preoccupied with ethniticity [sic] to a frightening degree." This statement fails to show racial animosity toward Jurado. In context, ethnicity refers to the "ethnic" audience market, as contrasted to KIIS' target "pop" or "top 40" market. Jurado also cites Benson's alleged statement that Jurado should drop the bilingual format because Jurado's show was "too ethnic" and KIIS did not "need the Mexicans or the blacks to win in L.A." Benson was referring to KIIS' demographic and marketing concerns, not expressing racial animus toward Jurado. Success in radio depends on appealing to specific segments of the listening community. Station formats are often directed at particular ethnic, racial, or social groups. The mere fact that a station adopts a format designed to entice a target ethnic audience does not tend to show racial animus in employment.

Jurado also argues...