Burns v. Jacor Broadcasting Corp., No. C-1-99-469.

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Writing for the Court: Spiegel
• Citation: 128 F.Supp.2d 497
• Docket Number: No. C-1-99-469.
• Decision Date: 19 January 2001
• Parties: Leah BURNS, Plaintiff, v. JACOR BROADCASTING CORP., Defendant.

128 F.Supp.2d 497 Leah BURNS, Plaintiff,
v.
JACOR BROADCASTING CORP., Defendant. No. C-1-99-469. United States District Court, S.D. Ohio, Western Division. January 19, 2001.

Page 498

Douglas Michael Morehart, Bunke Henkel Haverkamp Smith & Riehl Co LPA, Martin McHenry, Havercamp Brinker Rebold & Riehl Co LPA, Cincinnati, OH, for Leah Burns, Plaintiff.

Gary Lee Greenberg, Denlinger, Rosenthal & Greenberg — 1, Cincinnati, OH, Marcia Nelson Jackson, Akin Gump

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Strauss Hauer & Field, Dallas, TX, for Jacor Broadcasting Corporation, Defendant.

ORDER

SPIEGEL, Senior District Judge.

This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment (doc. 36); Defendant's Response (doc. 41); Defendant's Motion for Summary Judgment (doc. 37); Defendant's Memorandum in Support of the Motion for Summary Judgment (doc. 38); Plaintiff's Response (doc. 44); Defendant's Reply (doc. 46); Defendant's Objections and Motion to Strike Plaintiff's Summary Judgment Evidence (doc. 47); Defendant's Notice of Additional Authority (doc. 49); Plaintiff's Memorandum in Opposition to Defendant's Objections (doc. 53); Defendant's Reply (doc. 54); and Plaintiff's Addendum (doc. 55).

In addition, the Court held a status conference in this matter on December 20, 2000 (see doc. 50).

BACKGROUND

A. Introduction

On June 22, 1999, Plaintiff Leah Burns originally filed a six-count Complaint against Defendant Jacor Broadcasting Corporation. The original Complaint asserts that Plaintiff is a former employee of Defendant Jacor Broadcasting Corporation (Id.). In addition, at all material times, Jacor has owned and operated radio stations in Hamilton County, Ohio (Id.).

In the original Complaint, Plaintiff Leah Burns alleges the following causes of action: (1) violation of the Fair Labor Standards Equal Pay Act (hereinafter, "EPA"), Title 29 U.S.C. §§ 206, et seq.; (2) violation of Ohio's wage discrimination laws, Ohio Rev.Code §§ 4111.17 and 4112.02(A)(2); (3) state law retaliation, Ohio Rev.Code §§ 4112.02(a) and 4112.99; (4) violation of state law public policy against discrimination and retaliatory employment practices by employers against their employees; (5) violation of Ohio's sex discrimination statutes, Ohio Rev.Code §§ 4112.02(A) and 4112.99; and (6) violation of the state's public policy in regards to employers allowing their employees to sexually harass, discriminate, and terminate the employment of other employees because of their sex (doc. 1).

Shortly thereafter, Defendant Jacor filed its first Answer denying, in pertinent part, the allegations as asserted in Plaintiff Burns' original Complaint (doc. 4). On March 29, 2000, Plaintiff Burns filed her Amended Complaint alleging basically the same facts, but adding two new federal causes of action: (1) Count VII asserts a cause of action against Defendant for retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., and (2) Count VIII asserts a cause of action for sex discrimination against Defendant in violation of Title VII (doc. 15).

Defendant Jacor followed with its Amended Answer again denying, in pertinent part, the allegations asserted in the Amended Complaint (doc. 17). In its Amended Answer, Defendant asserts a total of 20 affirmative defenses to Plaintiff's claims (Id.).

As noted earlier, Defendant Jacor Broadcasting Corporation is a corporation doing business in Ohio, and Plaintiff Leah Burns is a citizen of the State of Ohio. This Court has jurisdiction of this action under Title 28 U.S.C. § 1331 because it arises under the EPA and Title VII. The Court has supplemental jurisdiction of the state law claims alleged herein under Title 28 U.S.C. § 1367.

The following facts are drawn from the pleadings and documentary evidence in this case (see docs 1, 4, 15, 17, 37 & 44).

B. Facts

The Jacor Broadcasting Corporation owned and operated radio stations throughout the United States until it

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merged with Clear Channel Communications, Inc., in or about April 1999 (hereinafter, collectively referred to as "Defendant" or "Jacor"). Leah Burns (hereinafter, "Plaintiff" or "Burns") began working for Clear Channel in or around 1988. Burns' first full-time job at Jacor actually consisted of two part-time jobs, one at WEBN-FM and one at WLW-AM.

Burns thereafter received a pay increase and moved to WLW-AM to work full-time as an Assistant Production Director. Burns held this position for two years, then was promoted and moved to another Jacor station as a Production Director. While serving as Production Director, Burns performed on a show segment called "Chick Talk," in which four women discussed various issues, including their sex lives and other "adult topics." Burns received glowing performance reviews from her supervisor, Bill Willis ("Willis"), who was then the Program Director of WLW. Beginning in about 1989, Burns also lent her voice to the Gary Burbank Show that was also broadcast on WLW-AM and hosted by a local radio personality named Gary Burbank ("Burbank").

In 1994, Burns began working full-time on WLW, and according to Defendant, Burns knew that Jacor had a written policy prohibiting sexual harassment that instructed employees to immediately report any incidents of harassment or wrongful treatment to her supervisor. Burns asserts that the same policy did not explicitly state that there would be no retaliation allowed against the person who reported the incident of sexual harassment to their supervisor. "Jacor's Policy Against Sexual Harassment," which Burns allegedly received, states, in pertinent part:

If you feel that you are being harassed, or treated in ANY manner that does not allow all of us to benefit from the potential you have to offer, please speak up! ... A prompt and through investigation will take place.

(doc. 37).

1. "The Burbank Incident."

In the Spring of 1994, Burns began working full-time on the Gary Burbank Show replacing Kevin "Doc" Wolfe, Burbank's long-time sidekick. According to Plaintiff, Burns played an integral role on the Gary Burbank Show. For example, Burns interacted on air with Burbank and wrote and performed comedy bits and sketches. Burbank allegedly described Burns as his "heir apparent," and Burbank allegedly considered Burns to be a "tremendous talent."

According to Defendant, Burns provided some character voices, occasionally helped write and edit material, and controlled the traffic logs once the show became nationally syndicated. Burns also performed on the air and discussed a variety of topics, including those of a "sexual or adult nature," as well as volunteered to sing on parody songs that required her to use vulgar terms and/or profanity in comedy bits.

Sometime during this time period, Burns' professional and personal relationship with Burbank deteriorated. According to Plaintiff, Burbank had previously expressed a physical attraction to Burns and allegedly went so far as to refer publicly and privately to Burns' appearance in a demeaning and sexually degrading manner. For example, Burbank allegedly announced on the air to his listeners that, Burns had a "champagne ass." Burns allegedly asked Burbank to stop his "harassment" of her, but he allegedly refused to do so.

Burbank's treatment of Burns worsened to the point that, he allegedly physically lunged at her and threatened to strike her. Burns further alleges that Burbank broadened his abuse by calling her "the fat lady at the circus." Burns asserts that Burbank's mistreatment of her continued in this way from the Winter of 1994 until

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Plaintiff left the show sometime in 1997. Burns contends that she went to their supervisor for help, but Willis offered her no assistance in stopping the ongoing "harassment" by Burbank.

Sometime in 1997, Laura Steele ("Steele"), who was then reading the news on WEBN-FM's morning drive-in show titled, "The Dawn Patrol," announced she was leaving Cincinnati. Burns soon began asking about transferring to WEBN's Dawn Patrol.

According to Plaintiff, in part to escape the abusive relationship with Burbank and in part to further advance her career, Burns contacted Jim Richards ("Richards"), Program Director at WEBN and Marc Chase ("Chase"), who at that time supervised Richards, Burns and Burbank, and informed Richards and Chase that she wanted to leave the Gary Burbank Show and transfer to WEBN, because Burbank was "a terror to work with." Eddie Fingers ("Eddie"), the star of the Dawn Patrol, also allegedly "initiated pursuing" Burns at about the same time to come to the Dawn Patrol, because of "her work on the [Gary] Burbank Show." Eddie was allegedly not then aware of Burns' concerns about Burbank's abuse that was directed at Burns.

Richards and Chase allegedly agreed she would move onto WEBN-FM, slowly at first, in order to get accustomed to the WEBN format. Thereafter, Plaintiff began splitting her time between the Gary Burbank Show and WEBN. According to Plaintiff, in the Summer of 1997, Richards and Chase, having heard Burns state her career goal, "lured" Burns to the Dawn Patrol by leading her to believe that she would perform the duties of a "co-host" or "co-star" on the Dawn Patrol. To further that goal, Burns believed that she would write and perform bits on the air and would eventually become the next Robin Wood. Ms. Wood had been a co-host of the Dawn Patrol for several years prior to Burns' transfer to WEBN-FM.

2. The First Formal Discrimination Complaint by Burns.

According to Defendant, in October of 1997, Burns met for the first time with Barb Buchwald ("Buchwald"), Jacor's head of Human Resources and allegedly first told Buchwald that, in 1994, Burbank had referred to Burns on and off the air as having a "champagne ass," that he lunged at her, and went on to describe other various instances of sexual harassment and intimidation she allegedly suffered at the hands of Burbank. Buchwald allegedly then told Burns that...