Lebow v. Meredith Corp.

• Decision Date: 04 May 2007
• Docket Number: No. 05-2545-JWL.,05-2545-JWL.
• Citation: 484 F.Supp.2d 1202
• Parties: Stuart A. LEBOW, Plaintiff, v. MEREDITH CORPORATION d/b/a KCTV-5, Defendant.
• Court: U.S. District Court — District of Kansas

484 F.Supp.2d 1202

Stuart A. LEBOW, Plaintiff, v. MEREDITH CORPORATION d/b/a KCTV-5, Defendant.

No. 05-2545-JWL.

United States District Court, D. Kansas.

May 4, 2007.

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Luis Mata, Rebecca M. Randles, Sarah A. Brown, Randles, Mata & Brown, LLC, Kansas City, MO, for Plaintiff.

Bernard J. Rhodes, Bridget B. Romero, Lathrop & Gage, LC, Kansas City, MO, for Defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Plaintiff Stuart A. Lebow was formerly a news director for defendant Meredith Corporation d/b/a KCTV-5. He alleges that the station unlawfully discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and related Kansas statutes. Mr. Lebow contends that he was the victim of age harassment and discrimination during a period that began around the time KCTV-5 implemented a new management regime and news program format entitled "Live. Late — Breaking. Investigative." and continued until right before Mr. Lebow qualified for long-term disability leave in 2004. This matter is currently before the court on Defendant Meredith Corporation's Motion for Summary Judgment (doc. # 48). For the reasons explained below, the court will dismiss certain aspects of plaintiff's claims for lack of jurisdiction based on plaintiffs failure to timely file an administrative charge. With respect to the remaining aspects of plaintiffs claims, the court will grant defendant's motion for summary judgment in part and will deny it in part. Specifically, the court will deny defendant's motion with respect to plaintiff s age discrimination and retaliation claims, and the court will grant the motion with respect to plaintiffs age harassment claim as well as the issue of compensatory damages on his discrimination claim.

STATEMENT OF MATERIAL FACTS¹

Defendant Meredith Corporation owns and operates KCTV-5, the CBS-television affiliate serving the greater Kansas City area. In 1996, the station hired plaintiff Stuart A. Lebow as a Television Director. Under the union contract, a Television Director's primary duties include the following:

Direct announcements and programs including, but not limited to, the operational supervision of audio and video, lighting, scenery, props, overall staging, and the final responsibility for having typewritten formats, copy, disks, tapes, films, slides, and other physical materials needed in the coordination of video and audio elements.

A Television Director's duties also include commercial assemblies and production editing. A Television Director's duties do not include operating a studio camera on a newscast except in "bona fide news emergencies."

In Mr. Lebow's performance appraisal dated July 9, 2001, he received a "Meets Expectations" rating. He received laudatory comments from his supervisor, Dale Jacobson. The performance appraisal stated that Mr. Lebow did "a competent job" of directing the Monday-Wednesday 5:00 p.m. newscast and the weekend a.m. newscast; that he "has been involved in innovations on the weekend with the 5 Min. Chef'; and that "[t]he crew enjoys working with him and the producer appreciates his efforts." In Mr. Jacobson's remarks, he also praised Mr. Lebow for his commercial production, assembling promotions, and involvement in special projects.

Beginning in early 2002, KCTV-5 management decided to adopt a new format, or "brand" for its local news programming. This new format was called "Live. Late-Breaking. Investigative." According to Regent Ducas, News Director at the station, this meant urgent news, i.e., "[t]hat it's a very urgent sense of the day's news." He further described the news as follows: "No matter what it is, we're going to be there and we're going to have it and investigative in nature." Kirk Black, General Manager of KCTV-5, testified in his deposition that it meant a "[l]ive, fast paced, late-breaking kind of newscast. Heavy on lots of graphics, lots of elements." He said that based on research, the station "developed a plan to change our news product in the way we go out and gather and present news and how we brand it." He explained that "fast-paced" meant "[h]igh story count, high production values, multiple live shots, videos from multiple sources, newscast changing minutes before the show, newscasts changing minutes after the show starts."

As part of this new format, in March of 2002 KCTV-5 introduced a new 4:30 p.m. newscast. Plaintiff originally shared directing duties for this newscast, but, in April of 2002 he was removed from directing duties for this newscast. He was placed on camera duty, an entry-level position, for the evening newscasts and was given the Monday-Wednesday noon newscasts to direct. He was replaced as director for the 4:30 newscast by Jon Gilchrist, who was in his mid thirties. When plaintiff explained that the new schedule would not leave him much time to edit and produce commercial production, the station took Mark Olson, who is twenty-five years younger than plaintiff, off of running the studio camera during the news so that he could do the promotion spots. Plaintiff ran camera for approximately nine months. He was the only director at KCTV-5 who was made to run camera during the newscasts. He testified in his deposition that "[t]here were four or five younger employees in their twenties, late twenties early thirties, that were assigned those productions and I was assigned to run the studio camera."

At the time, Mr. Jacobson's purported justification to Mr. Lebow for his change to cameraman was a staffing shortage. The station later justified Mr. Lebow's reassignment on the grounds that "it quickly became apparent that [Mr. Lebow] did not have the necessary skills to effectively direct this new newscast, which emphasized late breaking news and had frequent interruptions from the planned script." The station contended that plaintiff could better handle the noon newscast, which was a more regularly scheduled newscast with few interruptions and therefore less pressure. An e-mail from Mr. Jacobson to Chuck Poduska dated May 20, 2002, stated as follows: "During the inauguration of the 4:30-5:00 newscast it became clear that Stu would not be able to direct the show.... The fact of the matter is Stu takes longer to prepare for shows than the other directors and if problems arise he has trouble dealing with them." Mr. Jacobson similarly testified in his deposition that Mr. Lebow was "not real good at adjusting to ... getting latebreaking news on the air in a clean fashion." Regent Ducas, News Director at KCTV-5, also believed that Mr. Lebow was unable to deal with last-minute changes. Yet only days after Mr. Jacobson's May 20, 2002, e-mail to Mr. Poduska, Mr. Lebow was given special recognition for his performance in the employee newsletter.

Mr. Lebow received his next performance appraisal on July 2, 2002. In it, Mr. Jacobson downgraded his rating to "Below Expectations." Mr. Lebow was criticized for failing to talk with producers about changes in the show during the week of March 4, 2002, the first week of the newscast. He had not been confronted about this alleged failing prior to his performance review. Mr. Jacobson also criticized Mr. Lebow as follows:

Stu is often unable to roll with the changes that so often happen in newscasts. The difficulty in making last-minute adjustments, has led to newsroom personnel having a lack of confidence in Stu's ability to call a smooth show. Shows directed by Stu generally don't have the pace the station looks for in a newscast. The newscasts directed by Stu tend to be very fundamental and slow in nature.

On July 7, 2002, Mr. Lebow submitted a written response to his performance appraisal. In that response he stated, among other things, that he had visited with the 4:30 newscast producer and found out that she had no problems with his directing or his communication with her for any broadcast including the production on March 4, 2002. He responded to numerous negative comments made in his performance appraisal and generally conveyed the message that many of those comments were false, pejorative, and had no basis in fact. For example, in his performance appraisal he was also criticized for running the wrong promo spot on May 17, 2002, but he had not worked that day. He stated that the fact that Mr. Jacobson stated that he was not able to roll with the changes "shows me that you failed to talk to the people I work with and displays more judgmental inaccuracies." He explained that he had spoken with two producers who both stated that they had no problem with him directing their shows. He had also spoken with two news anchors who stated that he does a good job and that they had no problems with his directing.

On July 22, 2002, Mr. Lebow's union representative sent a letter to the station concerning his 2002 performance evaluation. The letter stated that Mr. Lebow "believes that he may have been targeted for an unfavorable evaluation because of his age."

On February 25, 2003, Mr. Lebow was reassigned to direct the Monday-Friday morning newscasts. The station states that "[p]laintiff was given this opportunity because it was believed he was ready to direct a longer and more important newscast." He directed the morning show for approximately three months.

In June of 2003, Dawn Alexander took over his position as the morning show director. According to Mr. Lebow, Ms. Alexander had "a lot less experience" than him and was in her late twenties or early thirties. She was hired and "as soon as she was done with her training" only a few months later she took over as the morning show director. Mr. Lebow was moved to directing the Wednesday-Saturday noon newscasts, as well as the weekend evening newscasts.² The station justified the shift change on the grounds that "as the morning show became more complex with more live shots and other interruptions, Plaintiff was unable...