Gibson v. American Broadcasting Companies, Inc.

Decision Date03 May 1988
Docket NumberNo. 82 CV 5249 (RJD).,82 CV 5249 (RJD).
Citation687 F. Supp. 786
PartiesDavid Leslie GIBSON, Angelo Rios and Ronald O. Hope, Plaintiffs, v. AMERICAN BROADCASTING COMPANIES, INC., Robert Benson, Peter Flannery, Richard Dressel, and Jeffrey Sprung, Defendants.
CourtU.S. District Court — Southern District of New York

COPYRIGHT MATERIAL OMITTED

William J. Bennia, New York City, for plaintiffs.

Epstein, Becker, Borsody & Green, New York City, for defendants.

MEMORANDUM ORDER

DARONCO, District Judge.

Plaintiffs Hope, Gibson and Rios commenced this action against their employer, American Broadcasting Companies, Inc. ("ABC"), including individual supervisory personnel, defendants Benson, Dressel, Flannery and Sprung, alleging discrimination under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Title VII), the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the New York Human Rights Law, N.Y. Exec. Law §§ 290 et seq. Plaintiffs individually assert that the defendants have discriminated against them, in different ways and at different times, in certain terms and conditions of their employment on the basis of their race or national origin. Plaintiff Hope, a newswriter with ABC Radio News since 1976, alleges that his assignment to editorial duties was unfairly delayed because he is black; plaintiff Gibson, an onair correspondent for ABC Radio News since 1976, asserts that he was denied regularly scheduled weekends off because he is black; and plaintiff Rios, a desk assistant with ABC Radio News from 1976 to 1985, claims he was denied consideration and training as a newswriter because he is Hispanic. The defendants, pursuant to 42 U.S.C. § 2000e-5(k) and Rule 11 of the Federal Rules of Civil Procedure, seek attorneys' fees. The case is before the Court upon the defendants' Motion for summary judgment with respect to each plaintiff. Fed.R.Civ.P. 56.

Initially, in a Motion for summary judgment, the moving party must demonstrate the absence of any genuine issue of material fact. If the movant is successful, the burden shifts to the non-moving party to come forward with specific facts showing there is a genuine issue of material fact. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). References drawn from the underlying facts must be viewed most favorably to the non-moving party. Id. However, if the non-moving party fails to raise a "sufficient disagreement to require submission to a jury," summary judgment may be properly granted to the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Conclusory allegations of discriminations are insufficient to defeat a Motion for summary judgment. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985).

To make out a prima facie case of disparate treatment, a plaintiff must show that (1) he belongs to a protected group; (2) he was qualified for the position he sought; (3) he was denied the position; and, (4) the employer continued to seek persons of similar qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the plaintiff succeeds in establishing a prima facie case and, thereby, raises an inference of discrimination, the burden of production shifts to the defendant employer to rebut the inference by articulating some legitimate, nondiscriminatory reason for its actions. If the defendant rebuts the inference of discrimination, the burden returns to the plaintiff to prove that the articulated reason proffered by the employer is a mere pretext to disguise unlawful discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Throughout a case of individual disparate treatment discrimination, the burden of persuasion remains with the plaintiff to prove the defendant intentionally discriminated against him. Id. at 254-55, 101 S.Ct. at 1094-95.

Defendants.

American Broadcasting Companies, Inc. American Broadcasting Companies, Inc. is composed of various divisions and departments. ABC News is a division of American Broadcasting Companies, Inc., and ABC Radio News is a program department of ABC News. ABC Radio News provides news broadcasts, on a contractual basis, to radio stations throughout the United States. ABC Radio is a division of American Broadcasting Companies, Inc., and encompasses the ABC Radio networks and the ABC owned stations. Until January 1982, ABC Radio had four radio networks: Contemporary, Entertainment, Information, and FM. In January 1982, ABC Radio added two networks, Rock and Direction, for a total of six networks, each of which caters to demographically distinct audiences. ABC Radio News also provides news broadcasts to ABC's different radio networks. Joint Facts, ¶¶ 1, 2.

Benson. From November 1978 until November 1983, defendant Benson, as vice-president, held the most senior position within ABC Radio News. In this position, he was responsible for the editorial content of newscasts, bulletins, special coverage and public affairs programming for the ABC Radio networks. From November 1983 to July 1986, Benson was Vice-President, senior executive, ABC Radio Networks, responsible for, inter alia, the affiliating of radio stations with ABC. From July 1986 to the present, Benson has been employed as Vice-President, ABC Radio News. Defs' Memo. of Law at 6; Plntfs' Memo. of Law at 8-11. Benson claims he never had any direct responsibility for, nor did he make any decisions affecting plaintiff Hope's assignment, plaintiff Gibson's schedule, or plaintiff Rios' requests to be a newswriter. Benson Aff. at ¶ 2.

Dressel. From 1968 until April 1982, Dressel was News Manager, Contemporary network. From April 1982 until his retirement in April 1986, he was Manager, Domestic Assignment, ABC Radio News. Dressel claims he never had responsibility for, nor did he make decisions concerning, plaintiff Hope's job assignments or plaintiff Rios' requests to be a newswriter. Defs' Memo. of Law at 8 citing Dressel Dep. at 4-13. Dressel hired plaintiff Gibson and was responsible for direct supervision of him and his schedule. Dressel Aff. at ¶ 4 Flannery. Flannery was first employed by ABC Radio News in August 1968, as a newswriter, a position he held until June 1973, when he became News Manager, of the Entertainment radio network. In 1980, he became Assistant Director, ABC Radio News. From early 1982 until October 1983, he was General Manager, News Programming, ABC Radio News. In late 1983 until late 1986, when he resigned from ABC, he was Vice-President, ABC Radio News. From June 1976 until January 1983, Flannery was plaintiff Hope's direct supervisor, Flannery Aff. at ¶ 4. In 1978, he conducted an audition of plaintiff Rios's for a newswriter position, Flannery Aff. at ¶ 7; but he claims he never had any responsibility for, nor did he make any decisions affecting plaintiff Gibson's schedule. Flannery Aff. at ¶ 2.

Sprung. From September 1976 until April 1984, Sprung was employed as News Director, FM network. From April 1984 to the present, Sprung has been the News Director, Entertainment network. Plaintiff Rios worked under his direct supervision, Sprung Aff. at ¶ 7; on occasion, Sprung reviewed plaintiff Hope's job performance, id. at ¶ 4; but he claims he never had any responsibility for, nor did he make any decisions concerning plaintiff Gibson's schedule. Id. at ¶ 2.

Plaintiff Hope.

Plaintiff Ronald Hope, a black male, was hired as a newswriter by ABC Radio News ("ABC") in November 1976. Hope alleges he was a victim of racial discrimination in that Caucasian newswriters no better qualified than he received training and work as editors sooner than he did. Plaintiff Hope eventually received a permanent editorial position and, thus, his Complaint is that promotions were delayed due to alleged racial discrimination.

Background

Newswriters are subject to a national collective bargaining agreement between the American Broadcasting Companies, Inc., the corporation defendant, and the Writer's Guild of America, East, Inc. ("WGA"). Newswriters may be assigned various positions in the newsroom, including "ops" person or tape editor in the operations studio, copy or rim editor, assignment editor, senior or charge editor, overnight editor, or "assigned to the desk." Newswriters assigned the tasks of senior editor, assignment editor, rim or copy editor are upgraded as "acting editors" and are entitled to a pay differential in accordance with the WGA contract. The pay differential is identical for all acting editor positions.

Ordinarily, newswriters initially work in the operations studio. The "ops" person performs a variety of functions, which include receiving incoming stories from correspondents, conducting telephone interviews, supervising engineers in the editing and transcribing of tape, and selecting materials for use in the various newscasts. "Ops" represents the first line of editorial responsibility in the newsroom, although no additional "acting editor" compensation is received. After sufficient development and experience working in "ops," newswriters may be assigned to the newsroom in an editorial capacity and receive a concomitant salary upgrade.

Plaintiff Hope was first employed by ABC Radio News in July 1974 as a desk assistant, the lowest level of non-clerical worker. In November 1974, Hope left ABC and became a news reporter for RKO General, where he remained until May 1975. Between May 1975 and June 1976, Hope worked part-time as a radio stringer reporter for radio station WTNJ.

In the spring of 1976, Hope applied for a vacation relief newswriter position at ABC Radio News. He was interviewed and auditioned for this position by, among others, defendant Flannery, and was hired in June 1976. A vacation relief newswriter position ordinarily ends when the regular employee returns to work. However, a permanent position as a newswriter may be extended to a vacation relief newswriter, if...

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