O'Bryan v. KTIV Television

• Decision Date: 01 September 1995
• Docket Number: No. 94-4082,94-4082
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 1289, 130 Lab.Cas. P 57,976 Paul J. O'BRYAN, Appellant, v. KTIV TELEVISION, Quincy Newspaper, Inc., doing business as KTIV Television, New Jersey Herald, Inc., doing business as KTIV Television, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1188

64 F.3d 1188

68 Fair Empl.Prac.Cas. (BNA) 1289, 130

Lab.Cas. P 57,976

Paul J. O'BRYAN, Appellant, v. KTIV TELEVISION, Quincy Newspaper, Inc., doing business as KTIV Television, New Jersey Herald, Inc., doing business as KTIV Television, Appellees.

No. 94-4082.

United States Court of Appeals Eighth Circuit.

Submitted May 17, 1995.

Decided Sept. 1, 1995.

Gregg E. Williams, Sioux City, IA, argued, for appellant.

Gregory J. Griffiths, Rochester, MN, argued, for appellee.

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Plaintiff Paul J. O'Bryan appeals from a final order entered in the United States District Court for the Northern District of Iowa granting summary judgment in favor of defendants KTIV Television (KTIV), Quincy Newspaper, Inc., and New Jersey Herald, Inc., on all of plaintiff's federal and state law claims arising out of his employment and termination from employment with KTIV. O'Bryan v. KTIV Television, 868 F.Supp. 1146 (N.D.Iowa 1994). For reversal, plaintiff argues that the district court erred in holding that there were no genuine issues of material fact in dispute as to plaintiff's claims of (1) age discrimination, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq., (2) retaliatory discharge, in violation of the ADEA and Iowa Code Sec. 216.11 (1993), (3) discriminatory discharge, in violation of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. Sec. 1001 et seq., and (4) defamation and false light, in violation of Iowa state law. For the reasons discussed below, we reverse the order of the district court with respect to plaintiff's claims of age discrimination under the ADEA and retaliatory discharge under the ADEA and Iowa Code Sec. 216.11, affirm with respect to plaintiff's claims of ERISA discrimination and defamation and false light, and remand for further proceedings consistent with this opinion.

Background

The following facts are largely taken from the district court's statement of "uncontested facts." O'Bryan v. KTIV Television, 868 F.Supp. at 1151-54. On October 1, 1985, plaintiff was hired by KTIV, a Sioux City, Iowa, television station, to be KTIV's general sales manager. Prior to being hired by KTIV, plaintiff was employed by another Sioux City television station, KCAU-TV (KCAU), where he was the general sales manager. KTIV was purchased by Quincy Newspaper in the fall of 1989. Quincy Newspaper hired William F. Turner to be KTIV's vice president and general manager. Turner also came to KTIV from KCAU, where he had worked with plaintiff. After joining KTIV, Turner mentioned to plaintiff that Quincy Newspaper had paid $21,000,000 for KTIV; he further stated that, in his opinion, Quincy Newspaper had paid too much and that, as a result, costs would have to be cut. In 1991, plaintiff's title and duties were changed and he was given the title of national sales manager. KTIV temporarily operated without a general sales manager. On November 9, 1992, plaintiff was demoted to local and regional sales account executive, and two individuals were promoted above him. Kim Cleaver, a 33-year-old female, who had been the local sales manager, became the general sales manager. Adrian Wisner, a woman (age unknown), who had been an account executive, became the local sales manager.

On May 7, 1993, following his demotion to account executive, plaintiff filed discrimination charges with the Sioux City Human Rights Commission, the Iowa Civil Rights Commission, and the Equal Employment Opportunity Commission (EEOC). The Iowa Civil Rights Commission and the EEOC issued plaintiff right to sue letters.

In early 1993, Wisner drafted new "performance guidelines" for all account executives. ¹ The performance guidelines contained eight goals which account executives were told they were expected to meet.

On June 1, 1993, about three weeks after he filed his administrative complaint, plaintiff was given the first in a series of performance evaluations. At a meeting with Wisner, his immediate supervisor, she reviewed the eight points in her performance guidelines. She informed him that he was deficient in several areas. He was placed on sixty days probation and told that failure to meet the performance guidelines by the end of the sixty days would result in termination. Wisner also told him that two other individuals were below the station average and that she would be meeting with them as well. ² Wisner informed plaintiff that she wanted to meet with him every two weeks to review his progress.

On June 9, 1993, plaintiff sent Wisner a letter in which he stated "I will strive to achieve as many of those performance guidelines as reasonably possible." Joint Appendix at 130-31. His letter specified the areas where he believed the goals were or were not feasible based upon the then-current circumstances in the local market. His letter also suggested ways in which he felt his opportunities to bring in new business could be improved.

Plaintiff's next performance meeting took place on June 21, 1993, and was attended by plaintiff, Wisner, and Cleaver. Plaintiff was again told that his performance had yet to meet the goals of the eight guidelines. Similar meetings took place on July 8 and July 21, 1993; these two July meetings were attended by plaintiff, Wisner, and Turner, and plaintiff was again told that he was not achieving the goals in the eight guidelines. Finally, on August 2, 1993, plaintiff met with Wisner, Cleaver, and Turner, to review his performance during the sixty-day probationary period. Plaintiff was told that he had met only one of the goals, and he was therefore being terminated.

Plaintiff filed this action in federal district court alleging ten separate state and federal law claims against defendants arising out of the allegedly unfair treatment he had received while employed with KTIV and his termination. Defendants moved for summary judgment on all of plaintiff's claims. By a memorandum order dated November 22, 1994, the district court granted defendants' motion for summary judgment, entered judgment for defendants, and dismissed the case. O'Bryan v. KTIV Television, 868 F.Supp. at 1177. Plaintiff appealed.

Discussion

We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992); St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir.1992).

Age discrimination claim

We first address plaintiff's claim that defendants' decision to terminate him was motivated by age discrimination, in violation of the ADEA. ³ The district court held that plaintiff had introduced sufficient evidence to survive defendants' motion for summary judgment with respect to his prima facie case. As the district court noted, it is undisputed that plaintiff, at age 58, is in a protected class; it is also undisputed that defendants terminated him. As to the remaining element of plaintiff's prima facie case, the district court held, and we agree, that plaintiff produced sufficient evidence to generate a genuine dispute as to whether he was qualified for the position from which he was terminated. O'Bryan v. KTIV Television, 868 F.Supp. at 1172-73.

The district court determined, however, that plaintiff failed to produce sufficient evidence on summary judgment to create a genuine dispute on the issue of pretext. Id. at 1173-75. Defendants' proffered reason for terminating plaintiff was inadequate work performance, allegedly demonstrated by plaintiff's failure to meet the performance guidelines. As evidence of plaintiff's alleged poor performance, defendants introduced transcripts from tape-recordings (made without plaintiff's knowledge) of the biweekly performance evaluations which plaintiff was required to undergo with Wisner, Cleaver, and Turner. In response, plaintiff asserted that he was performing his position in a satisfactory manner, that the performance guidelines were unrealistic and applied only to him, and that other salespersons at KTIV who also failed to achieve some of the goals of the performance guidelines were nevertheless retained. The district court apparently agreed--in principle, at least--that these assertions, if substantiated, would create a genuine issue of material fact as to pretext and the ultimate issue of intentional discrimination. Id. at 1174. However, the district court held that there was no genuine issue of fact as to pretext because plaintiff's assertions were not supported by any credible evidence. We disagree with this aspect of the district court's analysis.

With respect to plaintiff's reliance on his own self-serving statements in his affidavit, the district court reasoned that "such conclusory, self-serving statements, standing alone, are insufficient to establish that plaintiff performed his job satisfactorily, especially given the well documented evidence to the contrary [ (i.e., the transcripts of the performance meetings) ]." Id. If it were true that plaintiff only produced personal statements claiming that defendants' expectations of him were unrealistic and their treatment of him unfair, we would agree with the district court's conclusion. See Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 945 (8th Cir.1994) (Davenport ) (affirming summary judgment for defendant-employer on plaintiff's claim of racial discrimination where plaintiff's only evidence to support allegation that he was treated differently...