9 F.3d 913 (11th Cir. 1993), 92-2485, Hairston v. Gainesville Sun Pub. Co.

Docket Nº:92-2485.
Citation:9 F.3d 913
Party Name:John M. HAIRSTON, Plaintiff-Appellant, v. The GAINESVILLE SUN PUBLISHING CO., Defendant-Appellee.
Case Date:December 21, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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9 F.3d 913 (11th Cir. 1993)

John M. HAIRSTON, Plaintiff-Appellant,

v.

The GAINESVILLE SUN PUBLISHING CO., Defendant-Appellee.

No. 92-2485.

United States Court of Appeals, Eleventh Circuit

December 21, 1993

Rehearing and Suggestion for

Rehearing En Banc

Denied Feb. 16, 1994.

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[Copyrighted Material Omitted]

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Rodney W. Smith, Alachua, FL, for plaintiff-appellant.

Steven Munger, Atlanta, GA, for defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before FAY and HATCHETT, Circuit Judges and JOHNSON, Senior Circuit Judge.

FAY, Circuit Judge:

This case involves a complaint filed pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621 et seq. The district court granted summary judgment for the employer, holding that the employee had failed to comply with the applicable statute of limitations and further failed to establish a prima facie case of retaliatory suspension or retaliatory discharge. Appellant has abandoned (as time barred) those issues raised in the initial charge of age discrimination and appeals only the district court's determination as to the retaliation claims. We REVERSE the district court, finding that Appellant has established both a prima facie case of retaliatory suspension

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and retaliatory discharge sufficient to withstand a motion for summary judgment.

I. STATEMENT OF FACTS

Appellee, the Gainesville Sun ("Sun"), a newspaper of general daily circulation in Gainesville, Florida, hired John Hairston in the early 1970's. Appellant was assigned to manage the sports department, edit the content of the sports section and write a daily sports column. In February of 1987, John Fitzwater was hired as publisher of the Sun. A month later, Diane McFarlin joined the Sun as executive editor. A few days after McFarlin became executive editor, she advised Appellant that Bobby Tyler, twenty-eight years Appellant's junior, was to become the executive sports editor and assume that portion of Appellant's duty pertaining to the management of the sports department. McFarlin explained to Appellant that she preferred to have the administrative and operational functions of the sports department performed by an individual who would be in the office regularly. At that time, Appellant attached little significance to the structural change and accepted the stated purpose.

Thereafter, McFarlin began to criticize Appellant's work, recommending that he improve the length, variety, writing quality and content of his columns. Specifically, she requested that he shorten his columns, write fewer notes 1, clear the subject matter of each column with the new executive sports editor, Pat Dooley, and write less on University of Florida football. 2 The record contains evidence that Appellant attempted to comply with the new guidelines even though Appellant believed the criticisms were not well founded.

Appellant subsequently received numerous critical personnel memorandums and marginal performance evaluations, particularly an evaluation dated February 3, 1988. Appellant responded to this evaluation with a memorandum challenging its validity and informing his superiors that he suspected the true reason for his low appraisal was age discrimination. Thereafter, a series of incidents involving Appellant occurred in 1989 to which Appellee attaches great importance and believes supports the disciplinary actions taken against Appellant.

The first incident occurred on July 22, 1989. Appellant wrote a sports column about a former University of Florida basketball player. The article stated Appellant's involvement in the procurement of a tryout for the ex-Florida player with the Orlando Magic basketball team. The most controversial sentence in the article reads, "... the Magic personnel department ... changed [its] mind on the matter when it was pointed out to [it] that [University of Florida] Gator coach Norm Sloan, the Gainesville Sun and others were interested enough ... to call the team about him." Appellees opined that it was improper and unethical for Appellant to call the Orlando Magic President or represent in the article that the Sun had an interest in the player being given a tryout.

The record, however, does not reveal whether Appellant represented to the Magic President that he was calling of behalf of the Sun, nor was the article written as an opinion column. Rather, the article attributes the above quotation to the player as a loose paraphrase of his explanation as to why he was afforded a tryout. It was subsequent to this article that McFarlin insisted the subject matter of each of Appellant's columns be approved by Dooley and edited prior to release.

The next incident occurred in October 1989, when the Sun was reporting on an NCAA investigation of the University of Florida basketball program. Appellant phoned 3 Norm Sloan, the Florida basketball

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coach, to request an interview. During the interview, Sloan asked Appellant what he had heard about the NCAA investigation. Appellant responded that he had heard "nothing new." 4 McFarlin later learned of Appellant's "nothing new" statement to Sloan, concluded that such a revelation constituted a serious breach of confidentiality, and suspended him from any further involvement in the story or any coverage of any University of Florida sports for one week.

On October 27, 1989, Appellant filed a charge of age discrimination claiming he had been functionally demoted, harassed and denied wage increases because of his age. In December of 1989, Appellant again interviewed Sloan following his resignation as the University of Florida basketball coach. At the conclusion of the interview, Sloan stated to Appellant that Fitzwater and McFarlin had told him they planned on "relieving Appellant of his duties." Appellant, having recently filed his discrimination action, asked Sloan if he would be willing to testify to that effect. Sloan agreed and Appellant later relayed this message to his attorney. That evening, Appellant wrote an article concerning the subject matter of the interview that day with Sloan. 5

On July 27, 1990, Appellant's counsel took a sworn telephone statement from Sloan in support of Appellant's age discrimination charge against Appellee. On August 15, 1990, at the conclusion of the investigation of the University of Florida athletic programs, Appellant wrote another column discussing the results of the NCAA investigation. The record suggests that this is around the time when Appellee learned of Sloan's willingness to testify on Appellant's behalf. On August 21, 1990, Gibson, the executive editor for Appellee...

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