Hicks v. Kntv Television, Inc.

• Decision Date: 05 March 2008
• Docket Number: No. H030607.,H030607.
• Citation: Hicks v. Kntv Television, Inc., 73 Cal.Rptr.3d 240, 160 Cal.App.4th 994 (Cal. App. 2008)
• Court: California Court of Appeals
• Parties: Bradford HICKS, Plaintiff and Appellant, v. KNTV TELEVISION, INC., et al., Defendants and Respondents.

73 Cal.Rptr.3d 240

160 Cal.App.4th 994

Bradford HICKS, Plaintiff and Appellant, v. KNTV TELEVISION, INC., et al., Defendants and Respondents.

No. H030607.

Court of Appeal, Sixth District.

March 5, 2008.

Coblentz, Patch, Duffy & Bass, A. Marisa Chun, Julia Greer, San Francisco, for Plaintiff/Appellant Bradford Hicks.

Law Office of David C. Codell, David C.Codell, Los Angeles, for Defendant/Respondent KNTV Television, Inc. and NBC Universal, Inc.

PREMO, J.

Plaintiff Bradford Hicks, a White man, was the 5:00 p.m. weeknight news anchor for defendant KNTV Television, Inc. (KNTV). When plaintiffs contract expired in 2003, KNTV chose not to negotiate a new contract with him. Several months later the station selected an African-American man to fill the position plaintiff had vacated. Plaintiff sued KNTV and National Broadcasting Company, Inc. (NBC), alleging causes of action for racial discrimination under Government Code section 12940 and for wrongful termination under Government Code sections 12940 and 42 United States Code section 1981.¹

Defendants moved for summary judgment, setting forth evidence to show that they had chosen not to retain plaintiff because the newly hired vice president of news was dissatisfied with plaintiffs performance on the air. The trial court granted the motion and plaintiff has appealed from the resulting judgment. We shall affirm.

I. Facts²

In April 2000, plaintiff signed an employment contract with KNTV. The contract was for a term of one year (May 1, 2000 to April 30, 2001), with two one-year extensions exercisable at the option of KNTV. KNTV exercised both one-year options, extending plaintiffs contract to April 30, 2003.

At the time plaintiff signed the contract, KNTV was owned by Granite Broadcasting, Inc., and was operating in the Salinas/Monterey television market. Plaintiff took the position with the understanding that he would be anchoring the 5:30 and 10:00 p.m. weeknight news broadcasts and that he was in line to take over the more coveted 6:00 and 11:00 p.m. spots when the incumbent, Doug Moore, left the station. During plaintiffs tenure with the station, KNTV became an NBC affiliate and began broadcasting in the San Jose/Oakland/San Francisco television market. The San Jose/Oakland/San Francisco television market was fifth in the nation in terms of size, significantly larger than the Salinas/Monterey market.

NBC purchased KNTV on May 1, 2002. Plaintiff was then anchoring the 5:00 p.m. news on weeknights. He also served as a reporter for the 11:00 p.m. newscast and hosted an entertainment and lifestyle program entitled Wine Country Living. Plaintiff had not succeeded to the 6:00 p.m. spot. Alan Denton, a White man, had replaced Doug Moore as the 6:00 and 11:00 p.m. anchor.

NBC's purchase of KNTV led to many changes in top management. Linda Sullivan was hired to replace KNTVs president and general manager. The news director was also replaced. On July 15, 2002, KNTV hired James Sanders as vice president of news. Sanders was responsible for the editorial content and production value of all of KNTVs newscasts.

Sanders assessed the performance of the KNTV news anchors and made several changes. He retained most of the anchors but reassigned some of them. Sanders chose not to retain several others, including plaintiff. Sanders stated that he chose not to retain plaintiff because he found plaintiffs performance abilities were "not consistent with KNTVs expectations for a major network evening news anchor in the fifth-ranked market in the nation." Sanders thought plaintiffs on-air style was "aloof, distant, standoffish, unapproachable, stiff, and too anchor-like." It was not what Sanders wanted for KNTV, which was an anchor who projected a "warm, approachable, credible, welcoming" style. As Sanders explained at his deposition, "I thought he needed to loosen up, to be more himself and to be an anchorman being Brad Hicks and not Brad Hicks trying to play the role of an anchorman. I thought that he came across on the air too much like a person trying to be an anchorman and not enough like a person bringing me the news. I did not believe he was connecting with the subject matter or the audience, and I thought that he gave the perception of someone giving a recitation of the news, not someone involved with it. I thought that Hicks was not exuding an aura that would make me feel like he was 'one of us,' meaning the audience, and that he was holding the audience at arm's length as opposed to embracing it. I also thought that his on-camera presence and demeanor were such that he came across like a person you wouldn't necessarily say 'hi' to if you passed him on the street." Sanders had `received telephone calls from viewers criticizing plaintiffs performance in terms consistent with these observations. Sanders maintained that he had spoken to plaintiff about his dissatisfaction with plaintiffs style on more than five separate occasions when he discussed plaintiffs overall job performance with him. Sanders never gave plaintiff a formal evaluation. Sanders denied that race played any role in his decision.

Plaintiffs personnel file contained a talent development recommendation dated October 2001 that included the following comments: "The key observation we discussed was staying away from the `Mr. Anchorman' style delivery. You want to keep your performance true to your personality, showing warmth while maintaining the various levels of urgency that exist for every story." The only formal performance review that appears in plaintiffs personnel file is dated July 1, 2002, and is signed by Sanders's predecessor, Bob Goldberger. Goldberger described plaintiff as having "an easy, conversational anchoring style that makes him very watchable." The review credits plaintiff with turning in "strong consumer stories" and commends his dedication and leadership in the news room. Under the section entitled "Improvement/Development Needs and Plans" Goldberger wrote: "[Plaintiffs] easy anchor style is a bit polarizing. Some viewers take it as being aloof. [Plaintiff] needs to work on being a bit more commanding, and mainstream." The comments suggest other areas in which plaintiff could improve and end by noting that plaintiff "is one of our best reporters."

Sanders informed plaintiff in early April 2003 that Sanders would not negotiate a new contract when plaintiffs existing contract expired at the end of that month. Sanders did allow plaintiff to remain at KNTV until August to give him the opportunity to find a new job. Plaintiff had asked to stay on as a reporter but Sanders declined, stating that, in his experience, moving a daily evening news anchor to the reporter role "doesn't work." He was concerned that the move would affect the credibility of the news team overall by demonstrating the station's loss of confidence in plaintiff and that it would dampen morale in the newsroom and allow plaintiff to become disgruntled. Plaintiff ceased working at KNTV on August 15, 2003.

When Sanders first informed plaintiff that he would not renegotiate his contract, Sanders had not identified any potential candidates for plaintiffs position. He recruited for the position mainly by getting the word out to other news directors, anchors, and talent agents. In the search for a replacement, Sanders considered approximately 100 applicants, reading resumes and viewing audition tapes. He interviewed several applicants by telephone. Sometime after plaintiff left the station, Sanders first spoke with T.J. Holmes, an African-American man who had been referred to him by someone at NBC. Holmes was the only applicant Sanders personally interviewed. Sanders described Holmes's on-air personality as imparting a sense of warmth, sincerity, and approachability, giving the impression that he enjoyed what he was doing. Sanders hired Holmes on September 15, 2003.

Plaintiff was not the only anchor Sanders did hot retain. Sanders decided not to retain news anchors Terilyn Joe, an Asian-American woman, Kim Stephens, a White woman, and Linton Johnson, an African-American man. Sanders did allow Johnson who had been anchoring the weekend news, to remain as a reporter. Sanders retained news anchors Alan Denton and Brett Cannon, both White men, Laura Garcia-Cannon and Sandy Castelblanco, Hispanic women, and Lisa Kim, an Asian-American woman. In addition to Holmes, Sanders hired Diane Dwyer, a White woman and Kris Sanchez, a Hispanic woman. When the sports and weather anchors, who were both White men, left the station Sanders replaced them with an Asian-American man and an African-American man.

Plaintiffs opposition included evidence to show that he was objectively more qualified than Holmes, having 13 years of journalism experience, eight years as a regular weeknight news anchor, familiarity with the Bay Area, and multiple journalism awards. Holmes, in contrast, had been in journalism for only four years, had no experience regularly anchoring five nights, no familiarity with the Bay Area, and no journalism awards. Plaintiff disputed Sanders's claim that Sanders had verbally counseled plaintiff about his performance. According to plaintiff, Sanders had never said a word about it. He also pointed out that his personnel file contained no documents noting Sanders's alleged dissatisfaction with plaintiffs style. Indeed, Sanders had encouraged him apply for anchor positions in other markets and had even recommended him to a colleague. When plaintiff had become aware of an open position with an NBC affiliate in Philadelphia he asked Sanders if he thought he ought to apply for it; Sanders encouraged him to do so. Sanders also suggested that plaintiff pursue opportunities with the Fox network. According to Sanders, he made the suggestion because he knew that Fox was growing and had plenty of openings and he thought plaintiffs "somewhat detached and stentorian style might match their style." Sanders personally recommended plaintiff to...