Futran v. Ring Radio Co., Civ. A. No. C 79-1593 A.

• Decision Date: 25 September 1980
• Docket Number: Civ. A. No. C 79-1593 A.
• Citation: 501 F. Supp. 734
• Parties: Alexandra (Sasha) V. FUTRAN, Plaintiff, v. RING RADIO COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

501 F. Supp. 734

Alexandra (Sasha) V. FUTRAN, Plaintiff, v. RING RADIO COMPANY, Defendant.

Civ. A. No. C 79-1593 A.

United States District Court, N. D. Georgia, Atlanta Division.

September 25, 1980.

Mary Ann B. Oakley, Alice D. Bonner, Atlanta, Ga., for plaintiff.

John R. Crenshaw, Anne S. Rampacek, Alston, Miller & Gaines, Atlanta, Ga., for defendant.

MEMORANDUM OPINION AND ORDER

VINING, District Judge.

The plaintiff brought this action under the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; pendent jurisdiction was asserted over the plaintiff's claim for breach of contract under Title 20 of the Georgia Code. The case was tried by the court sitting without a jury on April 23, 1980. Post-trial briefs were filed by the parties on July 25, 1980. The following will constitute the court's findings of fact and conclusions of law as required by Rule 52, Federal Rules of Civil Procedure.

I. FACTS

The plaintiff, Alexandra (Sasha) Futran, was employed by the defendant, RING Radio Company, as a "ringmaster" (talk show host) on September 12, 1977. Her background prior to employment at RING Radio included approximately two years at a liberal arts college and some experience in sales, summer stock, writing, and community activities. Most important was her activity during the months preceding RING Radio's full time employment of her, viz., filling in at RING Radio for vacationing ringmasters.

At the time she accepted RING Radio's offer to become a ringmaster, Ms. Futran and the defendant's Vice President and General Manager, Harry Davey, discussed her job functions and terms of employment at great length. The starting salaries for ringmasters were determined through negotiation between the defendant's general manager and the prospective ringmaster. Ms. Futran's salary was to be $12,000 annually, with the possibility of a bonus based on her ratings. In addition, she was promised a substantial increase in pay if her ratings were good when the fall rating book was published the next January and a slight increase if her ratings were slightly improved; however, she would be fired if her ratings were down. (The ratings are based on Arbitron rating books.)

When Ms. Futran expressed amazement at how low her salary would be, Mr. Davey told her that Wallis "Chip" Wood, who would also begin working as a ringmaster on September 12, 1977, would be earning a salary "in the same ballpark." Mr. Wood, however, was hired as a ringmaster at an annual salary of $21,000, with the same kind of bonus agreement that the station had with Ms. Futran; he was also given an automobile for his use through November 1977 and received $1,500 for moving expenses. He was told by Mr. Davey not to discuss his salary with other employees.

Mr. Wood's background includes two years of college and extensive experience in writing and in public speaking, for several years he directed the Speakers Bureau of the John Birch Society, and reflects better job stability than Ms. Futran's. Just prior to accepting his position at RING Radio, Mr. Wood served as the General Manager and President of a California-based publishing firm specializing in political and economic commentaries.

Because Mr. Wood had no previous broadcast experience, Mr. Davey invited him to "guest host" a show, which was taped for review by Mr. Davey. Mr. Davey testified that he considered Mr. Wood's performance to be the best he had ever heard by a non-experienced broadcaster auditioning on RING Radio. Ms. Futran's air sound was found to be good but not as good as Mr. Wood's guest host performance. However, Mr. Davey also recognized that all ringmasters vary considerably in the quality of their performance over a period of time and that even the best ringmaster can do very poor shows.

During the plaintiff's discussion with Mr. Davey concerning the terms and conditions of her employment, Mr. Davey informed her that their oral agreement would be prepared in written form for her to sign before she began work on September 12. Despite several requests by the plaintiff, no written contract was presented to her until October 1977, after she had been working full time for several weeks.

When the contract was finally tendered in mid-October, it contained terms not previously discussed by the parties, including a stringent covenant not to compete, and omitted terms that had been discussed; consequently, Ms. Futran refused to sign the written contract. Diane Raymond, the individual replaced by Ms. Futran, was also to have signed a contract of employment with the defendant, but the defendant has no record of such a contract being signed by her, and her failure to sign a contract did not result in her termination.

The males at RING Radio earned more than the females as a group, and all individual males, except one, earned more than the individual females during 1977-1978. Jane Simons, who was replaced by Mr. Wood, was earning a maximum of $14,560 per year as a "talent" (non-contract) employee of the defendant. She broadcast from 9:00 a. m. until 11:00 a. m., the same hours during which Mr. Wood broadcasts. Ms. Raymond earned $15,000 annually plus a car and broadcast from 1:00 p. m. until 3:00 p. m., the same hours during which Ms. Futran broadcast. Wally Kennedy was paid $30,000 for his show during the midday period.

Personal endorsements were a source of revenue for the station and the individual ringmaster. The experience at RING Radio was that the conservative ringmasters were called on more often for personal endorsements than liberal ringmasters. Whereas Mr. Wood was deemed by RING Radio to be extremely conservative, Ms. Futran was deemed to be liberal, but as the only female ringmaster, Ms. Futran was the only woman available for endorsements; both received the same amount for endorsements when they began broadcasting for the defendant.

Due to illness Ms. Futran missed several days of the fall 1977 rating period. When the rating books arrived in January 1978, Mr. Wood placed third in one rating category and received a $300 bonus as a result of that rating. Ms. Futran was later to discover that she had placed second in two separate rating categories but, nevertheless, was told by Mr. Davey on the day that the rating books arrived at the station that she did not earn a bonus. When she again inquired in January about her ratings, Mr. Davey informed her that there had been no significant change and added that he did not feel she was doing a good job and was disappointed in her. At one point Mr. Davey suggested that she spend more time on preparation and less time on feminism. In contrast, others in the station, including her immediate supervisor (Program Director Dave Watkins), had on several occasions told Mr. Wood to observe Ms. Futran and use her as a model. It is interesting to note that Mr. Davey wrote a highly complimentary letter of recommendation on her behalf following her termination.

Despite numerous requests, Ms. Futran was unable to obtain a salary raise and was unable to discover what her ratings were. After termination the plaintiff learned that she had been entitled to a bonus based on her ratings.

After Ms. Futran had refused to sign the written contract which she was given in the fall of 1977, neither she nor Mr. Davey mentioned it again until March 31, 1978. On that date she was asked to type up promotional materials that advertised all other ringmasters' programs and public service announcements on index cards to be read on the air by all ringmasters and was asked to be in charge of maintaining the files, writing the material, and rotating announcements throughout the day. She refused to perform these functions, which she considered to be essentially clerical, and she also informed Mr. Davey that she considered the assignment discriminatory. At the time Ms. Futran was asked by Mr. Davey to perform these clerical tasks, she was the only female ringmaster at RING Radio and the only ringmaster asked to do such work. (The male ringmasters were not directed to perform such clerical tasks involving other than their own shows.)

During Ms. Futran's entire period of employment with RING Radio, she did a number of volunteer tasks of a professional nature, including recording public service announcements, recording all commercials requiring a female voice, research, promotions, and special programming. She had never before refused an assignment.

Just before Ms. Futran was asked to do the announcements, the receptionist, Ms. Seretha LeMon, had asked if she could be allowed to do them, since she had some free time and, in any event, she received the questions from listeners about them. Ms. LeMon had extensive writing experience and had done the announcements in the past. Her offer was refused.

After Ms. Futran declined to perform the essentially clerical duties, she was asked to meet with Mr. Davey and Mr. Watkins; she was told that she would have to perform these tasks or leave; she was further told that she would have to sign the contract or leave. During that discussion, on March 31, 1978, she was presented with a new written contract almost identical to the prior written one which she had previously refused to sign. During the discussion, Ms. Futran stated that because Mr. Davey was not satisfied with her performance and indicated that she would be fired unless the rating book coming out in July reflected significant improvement, she did not want to "sign away" the next two years of her life under a clause containing a covenant not to compete within a fifty mile radius for that period of time. The lengthy meeting concluded with a suggestion from Mr. Davey that both of them think about the matter over the weekend. The next discussion was in the form of an exchange of memos between Mr. Davey and Ms. Futran, in which Mr. Davey terminated Ms. Futran's employment. The court finds that her failure to...