Ryther v. KARE 11

• Decision Date: 13 September 1994
• Docket Number: Civ. No. 4-91-943.
• Citation: 864 F. Supp. 1510
• Parties: C. Thomas RYTHER, Plaintiff, v. KARE 11, an NBC affiliate and a division of Combined Communications Corp., an Arizona corporation and Gannett Co., Inc., a Delaware corporation, Defendants.
• Court: U.S. District Court — District of Minnesota

864 F. Supp. 1510

C. Thomas RYTHER, Plaintiff, v. KARE 11, an NBC affiliate and a division of Combined Communications Corp., an Arizona corporation and Gannett Co., Inc., a Delaware corporation, Defendants.

Civ. No. 4-91-943.

United States District Court, D. Minnesota, Fourth Division.

September 13, 1994.

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Donna L. Roback, and Larkin, Hoffman, Daly & Lindgren, Bloomington, MN, for plaintiff.

Thomas Tinkham, Karen Clauson Maki, and Dorsey & Whitney, Minneapolis, MN, for defendants.

ORDER

DOTY, District Judge.

This matter is before the court on defendants' motions for judgment as a matter of law and, in the alternative, a new trial and a reduction of damages. Based on a review of the file, record and proceedings herein, the court denies defendants' motions.

BACKGROUND

C. Thomas Ryther ("Ryther") worked as a sports anchor at Channel 11 from December 1979 until July 1991, pursuant to a series of three year contracts. In 1988, Janet Mason became the vice president of news at KARE 11, which is owned by Gannett. At that time, Ryther was the sports director and lead sports anchor. The sports department included Jeffrey Passolt ("Passolt") and Randy Shaver ("Shaver"), both under age 40. Ryther appeared on the six o'clock and ten o'clock news and hosted a weekly show during the football season. Passolt did a sports feature on the five o'clock news and was a reporter and weekend anchor along with Shaver.

In 1988, KARE 11 assigned Passolt to host the weekly football show. The following year Linda Rios-Brook ("Brook") was named the station manager at KARE 11. During 1989, Mason switched Ryther from the six o'clock news to a sports segment feature on the five o'clock news. Passolt became the sports anchor at six o'clock and Ryther continued to anchor the ten o'clock sports. Ryther worried that the loss of air time would adversely impact his visibility. In March 1990, Mason rated Ryther's performance as "commendable," the second highest mark possible. Two months later, Mason named Shaver executive producer of sports, a title that belonged to Ryther under his contract. Shaver assumed many of Ryther's organizational and planning duties. Ryther agreed to the change based on Mason's assurance that he would retain the right of final approval on all planning matters. However, according to Ryther, the promise was not honored and he was excluded by Mason and others from key planning decisions.

In June 1990, defendants hired the Gallup Organization ("Gallup") to assess audience reaction to certain on-air personalities in the Twin Cities market. Gallup surveyed a random sample of viewers using a "Q score technique" and open-ended questions. The Q score technique consists of multiple choice questions concerning viewer recognition and approval of on-air personalities. The Q score is widely used in the media industry to show viewer attachment to a personality by measuring the percentage of viewers who recognize the person and the percentage of viewers who are strongly favorable or strongly unfavorable of that person. The information obtained from open-ended questions provides a more complete picture of what viewers think about key personalities.

KARE 11 directed Gallup to use the Q score technique to measure the strength of 25 on-air personalities, including Ryther. The research results indicated that Ryther was well known in the market but his impact on viewers was less positive than the other lead anchors at KARE 11 and Mark Rosen ("Rosen"), the lead sports anchor at a competing station. Ryther's positive impact was slightly higher than that of Passolt who was not as well known in the market. KARE 11 also instructed Gallup to ask open-ended questions about 10 local personalities, including the other lead anchors at KARE 11, Passolt and Rosen.¹ KARE 11 did not ask the viewers such questions about Ryther. After evaluating the viewer data, Gallup recommended changing the lead sportscasters at KARE 11 and suggested that Passolt may have more "potential." According to defendants, the decision not to renew Ryther's contract was made in August 1990 based on the results of the Gallup research. In the fall of 1990, Mason removed Ryther's salary from the sports department budget but did not tell him of defendants' decision.

In early 1991, Ryther discovered he was being excluded from promotions. Ryther asked Brook about the status of his contract and she referred him to Mason. On March 6, 1991, Mason told Ryther, then 53 years old, that his contract would not be renewed when it expired at the end of July. Mason said that Ryther had failed in the Twin Cities market and explained that the decision not to renew his contract was based on the 1990 Gallup research. On July 16, 1991, Ryther held a press conference to announce he had filed an age discrimination claim with the Equal Employment Opportunity Commission. KARE 11 took Ryther off the air the same day but compensated him for the last two weeks of his contract. Ryther brought suit against defendants alleging defamation and age discrimination and retaliation in violation of federal and state law.

An eight day jury trial was held in September 1993. The ultimate issue in the case turned on whether a legitimate or an illegitimate set of considerations led to defendants' decision not to renew Ryther's contract. At the close of plaintiff's case, defendants moved for judgment as a matter of law on all claims. The motion was granted as to Ryther's defamation claim but was otherwise denied. The remaining claims were submitted to the jury at the close of evidence. The jury returned a verdict for Ryther on his age discrimination claim and awarded $272,444.00 in back pay and $433,330.30 in front pay. The jury also found that defendants' violation of the ADEA was willful. The jury found in favor of defendants on the retaliation claim.

Defendants now move for judgment as a matter of law claiming that the court erred in not holding as a matter of law that Ryther failed to establish that age was a determining factor in the decision not to renew his contract and failed to prove willfulness. In the alternative, defendants move for a new trial based on certain evidentiary rulings and certain jury instructions given and refused by the court. Defendants also claim that the damage award should be reduced because the award of front pay is speculative and Ryther failed to mitigate his damages.

DISCUSSION

1. Judgment As A Matter of Law

Defendants assert that Ryther's contract was not renewed because his research was poor, he was not contributing to the station's success and his work performance was unsatisfactory. Ryther contends the reasons offered by defendants for his discharge are pretextual and that age was the motivating factor for not renewing his contract. Defendants insist that Ryther failed to demonstrate a link between his age and the decision not to renew his contract. They also argue that there was no evidence of pretext that focused on the specific reasons offered by defendants.

Defendants as a proponent of a motion for judgment as a matter of law confront a difficult standard. In ruling on a motion for judgment as a matter of law, the court must consider the evidence in the light most favorable to Ryther, assume that the jury resolved all conflicts in favor of Ryther, assume as true all facts which Ryther's evidence tended to prove and give Ryther all favorable inferences which may reasonably be drawn from proved facts. Hall v. State Farm Fire & Cas. Co., 813 F.2d 137 (8th Cir.1987).² The court must deny the motion if reasonable jurors could differ as to the conclusions that could be drawn from the evidence. Id.

A. Ryther's Prima Facie Case

To make a prima facie case of age discrimination, Ryther must show that: (1) he was within the protected age group, (2) his job performance was satisfactory; (3) his contract was not renewed; and (4) defendants assigned a younger person with no better credentials to do the same work. Haglof v. Northwest Rehabilitation Inc., 910 F.2d 492, 493 (8th Cir.1990). See e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Proof of a prima facie case allows Ryther to benefit from a presumption of discrimination. At that point, defendants may rebut the prima facie case by coming forward with a legitimate, nondiscriminatory reason for not renewing Ryther's contract. Once the prima facie case has been rebutted, Ryther must carry his ultimate burden of persuasion by proving that defendants intentionally discriminated against him based on age. See, e.g., Nelson v. Boatmen's Bancshares, Inc., 26 F.3d 796, 801 (8th Cir.1994).

At this stage, the court looks to the ultimate factual issue of whether the evidence is sufficient to allow the jury to infer that age was a determining factor in defendants' decision not to renew Ryther's contract. Although the sufficiency of Ryther's showing of a prima facie case need not be analyzed, the court briefly addresses defendants' contention that Ryther failed to establish a prima facie case of age discrimination. Despite defendants' arguments to the contrary, the court finds that Ryther proved the elements of a prima facie case of age discrimination by a preponderance of the evidence.

There is no dispute that Ryther was within the protected age group when his contract was not renewed. Defendants assert that Ryther did not meet their legitimate expectations because he was not drawing substantial viewers. Defendants mistakenly equate their proffered reason for not renewing Ryther's contract with whether he established a prima facie case. The claim that Ryther failed to attract viewers goes to the issue of whether there was a legitimate business reason for defendants' actions. Excluding defendants' proffered reasons for not renewing Ryther's contract, there is ample evidence,...