Burch v. Wdas AM/FM, CIVIL ACTION No. 00-4852 (E.D. Pa. 6/28/2002)
| Decision Date | 28 June 2002 |
| Docket Number | CIVIL ACTION No. 00-4852. |
| Parties | JOE BURCH and ROSETTA BURCH, v. WDAS AM/FM, AM.FM INC. and LARRY JENNINGS. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Plaintiff has asserted claims for racial discrimination under Titles VI & VII and 42 U.S.C. § 1981 against his former employer, its parent corporation and its general sales manager. He has also asserted claims of interference with rights protected under the Family and Medical Leave Act ("FMLA") and retaliatory discharge for exercising those rights. Plaintiff has asserted additional supplemental state law claims for breach of contract, wrongful discharge and defamation.1
Presently before the court is defendants' motion for summary judgment.
In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir. 1986). Only facts that may affect the outcome of a case are "material." Anderson, 477 U.S. 248. All reasonable inferences from the record are drawn in favor of the non-movant. See id. at 256.
Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 499 U.S. 921 (1991). A plaintiff cannot avert summary judgment with speculation or by resting on the allegations in his pleadings, but rather must present competent evidence from which a jury could reasonably find in his favor. Anderson, 477 U.S. at 248; Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989); Woods v. Bentsen, 889 F. Supp. 179, 184 (E.D.Pa. 1995).
From the competent evidence of record, as uncontroverted or otherwise taken in the light most favorable to plaintiff, the pertinent facts are as follow.
Plaintiff Joe Burch is an African American man. He was hired by defendant WDAS in July 1989 as a senior account executive and served in this capacity for eight years. The account executives were responsible for generating revenue for the station by selling units of time for advertising. WDAS AM/FM is a Philadelphia radio station licensed by the Federal Communications Commission and a subsidiary of defendant AM.FM, Inc., a New Jersey corporation. More than 80% of its full-time employees are African American.
During plaintiff's tenure as a senior account executive, he was a top performer. In July 1997, he applied for and was promoted to the newly created position of local sales manager. The promotion decision was made by Kim Dziabis, a Caucasian woman who was then the general sales manager. Mr. Burch continued to work in this capacity until his termination on March 24, 2000.
WDAS sells units of advertising through two departments, the national sales department and the local sales department.2 The general sales manager oversees both departments and is responsible for balancing the revenue generated from national and local sales.
As local sales manager, Mr. Burch was primarily responsible for coaching and leading a sales staff of twelve account executives in achieving monthly and quarterly sales quotas. He was also responsible for approving individual orders and providing incentives to account executives for outstanding work.
Prior to the creation of the local sales manager position, Ms. Dziabis, as general sales manager, was primarily responsible for achieving the monthly sales quotas. In 1995 and 1996, local sales failed to meet the monthly quotas. In 1997, local sales only met the quota twice. Overall sales at the station, however, were good.
In September 1998, Charles Warfield, an African American man who was the general station manager, promoted Ms. Dziabis to the position of Director of Sales.3 In the nine months preceding her promotion, the station as a whole achieved the monthly sales quotas seven times. Defendant Larry Jennings, an African American man who had previously served as general sales manager at stations in Charlotte, North Carolina, was hired as general sales manager to fill the vacancy created by the promotion of Ms. Dziabis.
In the fall of 1998, Mr. Jennings was informed by corporate headquarters that each Philadelphia station was required to create a new position of director of market development and to fill the position by the beginning of 1999. Chancellor Marketing Group, a subsidiary of AM.FM, defined the position and the talents that the person hired was expected to have. Mr. Jennings conducted initial interviews of candidates and those who appeared to be suitable were then interviewed by Ms. Dziabis and two executives of Chancellor Marketing. These three interviewers then met to discuss the candidates and make a selection.
Two finalists, Debbie Kessler, a Caucasian woman, and Marie Tolson-Perry, an African American woman, were asked to complete talent profiles used for predicting an applicant's suitability for a particular job. Of the twenty-two attributes analyzed, Ms. Tolson-Perry achieved a higher score in nine categories, Ms. Kessler scored higher in seven categories and both candidates achieved identical results in six categories. After the process was completed, Ms. Kessler was offered the position. Mr. Jennings did not participate in the decision to select Ms. Kessler.
Under Mr. Burch, local sales met the monthly quota seven months in 1998 and four of the first five months in 1999. From June 1999 until Mr. Burch was terminated in March 2000, however, local sales failed to meet the quota each and every month. Local sales failed to achieve the sales quota in 22 of the 34 months during which plaintiff was local sales manager. While general sales manager, Ms. Dziabis discussed problems with local sales with plaintiff. A few months after Mr. Jennings took over in September 1998, he expressed concerns to Ms. Dziabis about plaintiff's ability to be an effective local sales manager. In June 1999, Mr. Jennings began performing certain duties for which plaintiff had previously been responsible. Mr. Jennings told Mr. Burch that he should no longer determine pricing, provide sales leads, give out bonuses or sign sales orders. Mr. Burch perceived that Mr. Jennings relieved plaintiff of this authority because he wanted to let everybody know that he was in charge and was jealous of Mr. Burch's good relationship with the WDAS staff and advertising community.
In October and November of 1999, Mr. Jennings sent plaintiff detailed e-mails expressing concern over the failure to achieve local sales quotas and asking him to make changes in his coaching and management style to achieve better results.
In an e-mail sent on October 27, 1999, Mr. Jennings related that accountability had been an area of pronounced weakness in plaintiff's performance all year. He advised Mr. Burch that the sales people "require a strong, well-focused and individualized approach to coaching and leadership." Mr. Jennings warned that
In a November 7, 1999 e-mail, Mr. Jennings reminded plaintiff that "you may recall from our meeting with Chester a few weeks ago (the one regarding October's Local performance), he made several thinly veiled references to the two us being at risk as a result of Local sales performance" and advised that "the real key to delivering the quarter will still boil down to how closely you work with and monitor individual performance."
Chester Schofield had taken over as general manager of WDAS in August 1999. Plaintiff complained that Mr. Jennings was not permitting him to do his job. Mr. Schofield said that he would put together a formal job description detailing the respective roles of Mr. Jennings and plaintiff. Mr. Schofield left the station in January 2000. With Mr. Schofield's departure, plaintiff explains there was nobody to whom he could complain and it "was just a matter of time" before he expected to be terminated.
Mr. Jennings met with plaintiff in February 2000 to discuss particular concerns with the performance of local sales and ways to improve that performance. He then sent an e-mail to Mr. Burch outlining the key points of discussion.
In e-mails dated February 10 and February 15, 2000, Mr. Jennings expressed concern about meeting the first quarter quota. In the February 15th e-mail, he also expressed concerns about holding the sales staff accountable for their responsibilities. In an e-mail of February 29, 2000, Mr. Jennings identified six account executives who were under-performing and reminded plaintiff of tactics they had discussed to improve their performance. He urged that Mr. Burch "work more closely than you ever have before to ensure that each account executive receives the attention they require." In e-mails of March 3 and March 11, 2000, Mr. Jennings reminded plaintiff that his end of the month reports for February were overdue.
Mr. Jennings presented Mr. Burch with a performance and compensation plan on February 15, 2000. The plan contains three parts: responsibilities, performance expectations and compensation. The responsibilities section...
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