Ewing v. Gill Industries, Inc.

• Decision Date: 15 January 1992
• Docket Number: H007683,Nos. H007202,s. H007202
• Citation: 3 Cal.App.4th 601,4 Cal.Rptr.2d 640
• Court: California Court of Appeals Court of Appeals
• Parties: , 68 Fair Empl.Prac.Cas. (BNA) 1455 Sam EWING, Plaintiff and Respondent, v. GILL INDUSTRIES, INC., Defendant and Appellant.

Page 640

4 Cal.Rptr.2d 640

3 Cal.App.4th 601, 68 Fair Empl.Prac.Cas. (BNA) 1455

Sam EWING, Plaintiff and Respondent, v. GILL INDUSTRIES, INC., Defendant and Appellant.

Nos. H007202, H007683.

Court of Appeal, Sixth District, California.

Jan. 15, 1992.

Certified for Partial Publication ^*

As Modified Feb. 13, 1992.

Olimpia, Whelan & Lively, Gary L. Olimpia, San Jose and James J. Der, Jr., Milpitas, for defendant and appellant.

Ellen Lake, Oakland, McGuinn, Hillsman & Palefsky, and John McGuinn, Altshuler, Berzon, Nussbaum, Berzon & Rubin, and Fred H. Altshuler, San Francisco, for plaintiff and respondent.

AGLIANO, Presiding Justice.

Plaintiff Sam Ewing brought this action against his employer Gill Industries, Inc. (Gill), alleging he was discharged on the basis of age in violation of the California Fair Employment and Housing Act (Gov.Code, §§ 12900 et seq.). Gill appeals from the judgment entered on a jury verdict awarding Ewing $122,850 in damages. Gill also appeals from the order granting Ewing's motion for attorney's fees. ¹ On appeal, Gill asserts error in exclusion of evidence, jury instructions, failure to grant nonsuit, and amounts of the damage and attorney's fee awards. For the reasons stated below, we modify the judgment as to the amount of damages. In all other respects, the judgment is affirmed.

Statement of Facts

The evidence in support of the verdict is largely circumstantial. Ewing was born in 1920. He worked for several years in radio broadcasting. In 1969 Gill hired him as a writer, producer and promotion person for television station KNTV, channel 11. On April 3, 1979, Gill made Ewing the director of media services for Gill Cable. Ewing supervised an eight-to-ten person staff. His responsibilities included the following: selection, ordering, scheduling and promotion of films for the G Channel; screening and selection of adult films for the Rendezvous Channel; development and publication of the Gill Cable Guide, a monthly program guide; selection, ordering, scheduling and promotion of films for the pay-per-view movie channel; selection and promotion of the Classic Movie Channel, which showed older movies, until that channel was eliminated in 1982 or 1983; publication of the "Gilline" Newsletter; some promotional advertising duties; and special promotional projects, including telethons, sporting events, concerts, ad campaigns, and direct mail advertising.

In August 1983, when Ewing was 63, Gill contracted with Home Theater Network, Inc. (HTN) and transferred to HTN Ewing's duties involving the G Channel. HTN chose the movies and broadcast them by satellite. The movies provided by HTN were of lower quality than those chosen by Ewing and customers complained about the change. Although the cost savings for Gill was $230,564, Gill did not ask Ewing if he could produce the G Channel on a lower budget. Ewing testified that he spent less than that allotted in his budget and could have produced the G Channel for far less than the amount that HTN charged Gill.

On October 1, 1983, Gill replaced the Rendezvous Channel with the Playboy Channel, eliminating Ewing's film selection function with the Rendezvous Channel.

On July 1, 1983, Gill hired 33-year-old David Katz and transferred to Katz Ewing's duties involving print display advertising, direct mail advertising, bill stuffers, and promotion for special pay-per-view events, such as sporting events and concerts.

In May 1984, Gill transferred the production of Gill Cable Guide to TVSM. The cost savings amounted to $619,530. Only a small portion of the new guide was devoted to Gill-specific programming, because the advent of national channels, such as HBO, ESPN and others, did not require local preparation. As a result of this decision, the staff in Ewing's department was reduced to Ewing and a secretary. Nevertheless, Ewing was still required to select a cover and photographs, prepare synopses of movies, obtain advertising copy from Katz and others, obtain the list of pay-per-view movies, obtain the G Channel information from HTN, write a column, and mail these materials to TVSM.

In May 1984, Bay Area Interconnect (BAI), a joint venture of Gill and Viacom Cablevision, hired 29-year-old Brad Harlan. Harlan was hired to promote the Classic Movie Channel, one of Ewing's former duties. BAI was located in a building adjoining Gill's offices, its broadcast studios transmitted all of Gill's programming to Gill's customers, and its personnel had constituted Gill's broadcast department. Harlan was a BAI employee. However, in its response to the Department of Fair Employment and Housing in connection with Ewing's age discrimination claim, Gill listed all BAI employees, including Harlan, as employees of Gill. The form also indicated that Gill Cable and Bay Area Interconnect were part of Gill Industries.

Robert Hosfeldt, president of Gill and a member of the BAI board of directors, knew BAI was interested in hiring someone to promote the Classic Movie Channel, knew Ewing promoted the Classic Movie Channel in 1982 and knew some of Ewing's functions had been eliminated, yet he did not suggest that Ewing be considered for this position.

In April 1985, Gill transferred Ewing's responsibilities for the pay-per-view movie channel to Harlan. During the 50 percent of his time that Harlan was performing pay-per-view duties, he was considered to be working for Gill. The pay-per-view movies were considered a Gill Product and seen only by Gill customers. Fifty percent, and later one hundred percent, of Harlan's salary and one hundred percent of Harlan's assistant's salary were paid by Gill. Gill also paid Harlan a commission based on the number of subscribers. Ewing never received a commission.

Ewing learned of the elimination of these duties when Hosfeldt told him to give the pay-per-view files to Harlan and to fire his secretary, the only other employee in the Media Services Department. Hosfeldt told Ewing that Jack Yearwood, the general manager of BAI, thought that BAI would boost its advertising sales to other cable systems if it handled the pay-per-view movies. Since this explanation did not seem reasonable, Ewing asked Yearwood why he wanted the pay-per-view movies at BAI. Yearwood responded, "I didn't want them. Bob Hosfeldt came to me some time back and he said that you were retiring at the end of the year and said he wanted us to handle the pay-per-view." ²

Since Ewing did not intend to retire, he then asked Ben Reichmuth, Gill's vice president of marketing, "does Gill Cable intend to retire me at the end of the year?" Reichmuth appeared startled and said, "You will have to ask Bob Hosfeldt." Ewing next approached Carl English, Gill's vice president of finance, who said, "Gee, as I understood it Brad Harlan was supposed to report to you." Ewing then confronted Hosfeldt with the conflicting versions and was told by him, "Oh, Jack Yearwood is mistaken.... he really wants the pay-per-view, and you are not going to be retired." "You can work here for as long as you want to." "The day that you retire is the day that I am going to open a Marie Callendar's restaurant in Santa Cruz." At trial, Hosfeldt testified that he transferred the pay-per-view duties in order to centralize all duties associated with pay-per-view at one location.

At the time Hosfeldt assured Ewing that his position was secure at Gill, he and Reichmuth had already decided to terminate him. Hosfeldt described the decision to fire Ewing as part of "organizational changes." However, out of eighty employees in the marketing division, only Ewing was to be fired and no other changes were made.

Allen Gilliland, the majority stockholder of Gill, told Hosfeldt that none of the "oldtimers" should be fired until after a pension and bonus program was in effect. Hosfeldt testified that it would have been "cruel" to warn Ewing of his firing.

In October 1985, Ewing asked English whether he would receive a cost of living raise like other Gill employees. English responded, "Well, aren't you retiring? You are going to be 65 in December. I mean, are you expecting a cost of living raise, or why should you get one?"

Various Gill employees made age-related remarks to Ewing at management meetings. English made comments to the effect that "this insurance doesn't apply to you, or the 401K retirement. I mean, you are too old to benefit. You old folks are costing the company a lot of money...." English also told Ewing that he was "over the hill." Marilyn Glover, director of marketing services, told Ewing, "you don't need any insurance policy. You have a much younger wife. You can stay home and let her work. That's the best insurance policy you could possibly have." Other managers would also tease him about retiring.

In December 1986, Gill returned to transmitting its G Channel movies. Gill did not offer Ewing his former duties related to the G Channel. Instead it entered into a contract with the former president of HTN who was located in Portland, Maine.

On April 24, 1987, Hosfeldt told Ewing, "Sam, as you may have noticed, we have been systematically phasing out your job here." He then fired him and told him he would receive three months' severance pay. Ewing was earning $52,624 per year at the time of his termination. Ewing went out to lunch with his wife and when he returned, he was barred from his office until he was accompanied by a security officer.

At the time of his termination, Ewing's remaining duties consisted of special projects, Gilline and providing information for the Cable Guide. Gilline was eliminated, but Ewing's remaining duties were given to Harlan, Katz, and John Cotter. ³

Ewing did some free-lance writing for Gill and BAI following his termination. He earned between $1,500 and $1,600. However, after he filed an employment discrimination complaint with the Department of Fair Employment and Housing, he received no further work from either company.

Other facts will be included as th...