Carlson v. Wplg/Tv-10, Post-Newsweek Stations

• Decision Date: 25 April 1996
• Docket Number: No. 94-0228-CIV.,94-0228-CIV.
• Parties: Arthur CARLSON, Plaintiff, v. WPLG/TV-10, POST-NEWSWEEK STATIONS OF FLORIDA, Defendant.
• Court: U.S. District Court — Southern District of Florida

956 F.Supp. 994

Arthur CARLSON, Plaintiff, v. WPLG/TV-10, POST-NEWSWEEK STATIONS OF FLORIDA, Defendant.

No. 94-0228-CIV.

United States District Court, S.D. Florida.

April 25, 1996.

Order Amending Decision in Part August 31, 1996.

COPYRIGHT MATERIAL OMITTED

William Robert Amlong, Amlong & Amlong PA, Fort Lauderdale, FL, Thomas Emerson Scott, Jr., Davis Scott Weber & Edwards, Miami, FL, for Arthur Carlson.

Mark Howard Richard, Coral Gables, FL, John Moore Brumbaugh, Scott Dozier Sheftall, Richman Greer Weil Brumbaugh Mirabito & Christensen PA, Miami, FL, Tamir W. Rosenblum, Cohen, Weiss and Simon, New York City, for WPLG/TV 10 Post-Newsweek Stations of Florida, Inc.

CORRECTED ORDER ON MOTIONS FOR SUMMARY JUDGMENT

UNGARO-BENAGES, District Judge.

THIS CAUSE is before the Court upon Defendant WPLG/TV-10's Motion for Summary Judgment filed July 17, 1995, Plaintiff Arthur Carlson's sealed Motion for Partial Summary Judgment filed on September 15, 1995, Plaintiff's Motion to Alter or Amend Order on Motions for Summary Judgment filed February 22, 1996, and Defendant's Rule 59(e) Motion to Alter or Amend Judgment filed February 26, 1996.

In his Second Amended Complaint, Plaintiff Arthur Carlson ("Carlson") claims Defendant WPLG/TV-10 ("WPLG") violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, as amended, and the Florida Civil Rights Act of 1992, Florida Statutes § 760.01, et seq., as amended, when it decided not to renew his contract as news anchor and then constructively discharged him due to his age. Carlson also claims that WPLG breached a collective bargaining agreement between WPLG and AFTRA when it refused to renew his contract and that WPLG defamed him in an interview given by Tom Doerr, news director, to the Sun Sentinel. Defendant moves for summary judgment on all of Plaintiff's claims against it on the grounds that it permissibly relied on non-age-related objective criteria in making the decision to remove Carlson from his position as anchor, that Plaintiff quit and was not constructively discharged, and that the statements made by Defendant were not defamatory. Plaintiff opposes Defendant's motion in its entirety and cross-moves for summary judgment on Counts I through IV, claiming that he has presented sufficient direct and circumstantial evidence to establish that he was demoted and then constructively discharged due to unlawful age discrimination.

The Court ruled in favor of Defendant on Counts V and VI and in favor of Plaintiff on Counts I through IV in its Order on Motions for Summary Judgment dated February 7, 1996. Plaintiff filed a motion to alter or amend based on the Court's failure to award Plaintiff intangible and/or emotional distress damages under F.S. § 760.11 and prejudgment interest on any back pay awarded to Plaintiff. Defendant also filed a motion to alter or amend based primarily on the Court's vagueness in handling the constructive discharge issue and Defendant's contention that the Court failed properly to apply the appropriate legal standards to the facts in this case.

THE COURT has considered the Motions, responses, and the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby

ORDERED AND ADJUDGED that Defendant WPLG's Motion for Summary Judgment be denied with regards to Counts I through IV, Defendant's Motion for Summary Judgment should be granted for Defendant regarding Counts V and VI, and Plaintiff's Motion for Partial Summary Judgment should be granted with regards to Counts I and III and denied with regards to Counts II and IV for the reasons set forth below.

FACTS

Arthur Carlson was terminated from his employment with WPLG/TV-10, a Miami, Florida television broadcaster, on August 13, 1993. Carlson was forty-four (44) at the time and had worked for WPLG in some capacity for the last sixteen years. The last positions Carlson held were morning and mid-day anchor, in addition to medical reporter. Carlson had held these three positions for the last 8 years, and was being paid $210,000 for the first 18 months of his most recent personal services contract, $145,000 for the second year, and $154,300 for the last year. Carlson had received praise from the news community, particularly for his medical reporting, and had never received an unsatisfactory performance evaluation.

Between 1991 and 1993, WPLG used the services of the McNulty Research Group ("McNulty") to do focus group studies and surveys for the station. WPLG would essentially dictate the areas and, to a lesser extent, the questions, for McNulty to research. Over the years, McNulty reported that the viewer trend was toward younger and more vibrant news reporters and anchors, marking a drastic change in the market perception. The station gave great credence to these findings and sought to implement them.

In 1992 and 1993, both then-news director Tom Doerr ("Doerr") and the station image consultant began making comments to the effect that Carlson needed to look younger. Carlson proceeded to darken his hair and mustache. However, in January of 1993, the image consultant wrote a letter to Doerr stating that Carlson still dressed and looked much older than his age and ending with the comment "off with the old and on with the new."

In the spring of 1993, Carlson learned from Doerr that many changes were to take place at the station later that year. Doerr told Carlson that he was to be removed from his positions as morning and mid-day anchor and was to concentrate on medical reporting full time. Doerr knew that Carlson would consider such a change a demotion, as he had been anchoring for many years. The stated reason for this change was that medical reporting was Carlson's strength and that the station wanted to make sure it had a strong foothold in that area.

Carlson was also to receive an almost 45% decrease in his salary, down to around $90,000 per year. WPLG's collective bargaining agreement with the American Federation of Television and Radio Artists ("AFTRA"), which covered Carlson, expired on December 3, 1992. At the time of Doerr's announcement to Carlson, Carlson and WPLG were in the midst of negotiating a new personal services contract, independent from any collective bargaining agreement involving AFTRA. WPLG continued to pay Carlson at the level of his previous salary while they negotiated.

In July of 1993, while negotiations ostensibly continued, Carlson took an "emergency leave" due to serious health problems in his wife's family in Albuquerque, New Mexico. However, Carlson then flew to Montana to interview for a position at a television station there and apparently placed a bid on a house there as well. Upon Carlson's return, Doerr stated to Carlson that he had heard of Carlson's new job offer — though he did not yet know the new job was the real purpose of Carlson's "emergency leave" — and that, as far as the station was concerned, Carlson had quit. Doerr noted later that, if Carlson had not quit, he would have been fired immediately once the station found out that he had lied about his "emergency leave."

Doerr was interviewed by the Sun Sentinel regarding Carlson's departure. Doerr made statements to the effect that the station had demoted Carlson to medical reporting because that was his strength, and Carlson had decided to leave rather than accept the demotion. Doerr also commented generally that veterans were not as valuable in the news field as they used to be.

LEGAL STANDARD

The procedure for disposition of a summary judgment motion is well established. Summary judgment is authorized only when:

the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (emphasis added)

Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). The party moving for summary judgment has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In applying this standard, the Adickes Court explained that, when assessing whether the movant has met this burden, the court should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. All reasonable doubts about the facts should be resolved in favor of the non-movant. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608.

The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings. After the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact, the non-moving party must make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553; Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

If the record presents factual issues which are material to the outcome of the case, the Court must not decide them; it must deny the motion and proceed to trial. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). Summary judgment may be inappropriate even where the parties agree on the basic material facts, but disagree about the inferences that should be drawn from these facts. Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir.1969). If reasonable minds might differ on the inferences arising from undisputed material facts then the Court should deny summary judgment, as a genuine dispute exists. Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1031 (5th Cir. 1982). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct....