Minshall v. McGraw Hill Broadcasting Co., Inc.

Decision Date28 March 2003
Docket NumberNo. 01-1576.,No. 02-1049.,01-1576.,02-1049.
Citation323 F.3d 1273
PartiesDavid MINSHALL, Plaintiff-Appellee, v. McGRAW HILL BROADCASTING COMPANY, INC., doing business as KMGH, Channel 7, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

David A. Lane, (Mari Newman, with him on the brief), Miller, Lane, Killmer & Greisen, LLP, Denver, CO, for Plaintiff-Appellee.

Henry D. Lederman, (Franklin A. Nachman, with him on the briefs), Littler Mendelson, Denver, CO, for Defendant-Appellant.

Before MURPHY, BALDOCK, and O'BRIEN, Circuit Judge.

MURPHY, Circuit Judge.


David Minshall ("Minshall") filed this suit against his former employer, McGraw-Hill Broadcasting Company ("McGraw-Hill"), alleging that McGraw-Hill unlawfully discriminated against him on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and Colo.Rev.Stat. §§ 24-34-401 to -406. Minshall also alleged a claim for intentional infliction of emotional distress. The district court granted McGraw-Hill summary judgment on the intentional infliction of emotional distress claim, which Minshall does not appeal.

After a trial on the merits of Minshall's discrimination claims, a jury returned a verdict in his favor finding that McGraw-Hill discriminated against him on the basis of age. Answering special interrogatories, the jury also found that McGraw-Hill's conduct was willful. The jury awarded Minshall back pay in the amount of $212,326.00 and found that the award of back pay should not be reduced by any failure to mitigate damages. The question of whether Minshall was entitled to front pay was reserved for the district court. In an advisory capacity, however, the jury recommended that he be awarded front pay in the amount of $137,500.00. In a post-trial order, the district court awarded Minshall front pay in the amount of $137,500.00. The court also awarded $212,326.00 in liquidated damages and $153,958.00 in attorney's fees.

McGraw-Hill moved for judgment as a matter of law ("JMOL") at the close of evidence, renewed its motion for JMOL in a post-trial motion, and, in the alternative, moved for a new trial. McGraw-Hill also moved to alter or amend the judgment on front pay and back pay. The district court denied McGraw-Hill's motions.

McGraw-Hill appeals the district court's denial of its motions for JMOL, new trial, and to alter or amend the judgment. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the judgment.1


McGraw-Hill does business as KMGH-TV ("KMGH") in Denver, Colorado. Minshall worked as an on-air investigative reporter with KMGH from 1980 until KMGH decided not to renew his contract on March 10, 1997. At the time KMGH decided not to renew his contract, Minshall was over 50 years old.

At trial, evidence was introduced that in 1995, Minshall violated an agreement to protect the anonymity of a source by allowing a document to be aired showing the source's name. McGraw-Hill introduced evidence that Minshall appeared visibly intoxicated while accepting an award for a series on drunk driving at a 1995 Emmy Awards ceremony. Minshall testified that he apologized for his conduct at the Emmy Awards ceremony and admitted that he was partially at fault for the disclosure of the source's identity. KMGH did not threaten to terminate Minshall over either of these incidents.

In April 1996, KMGH hired Melissa Klinzing ("Klinzing") as News Director. To promote KMGH's news programs and boost ratings, Klinzing initiated a news format known as "Real Life, Real News." Klinzing designed "Real Life, Real News" with the intention of reaching a younger demographic than that which historically watched KMGH news programs. To achieve this goal, the cosmetic look of the news programs was altered. Klinzing considered the physical appearances of the on-air anchors and reporters in making changes to the overall appearance of the news programs.

Under Klinzing's direction, anchors Ernie Bjorkman ("Bjorkman") and Bertha Lynn ("Lynn"), individuals over the age of 40, were removed from the ten o'clock nightly news and replaced by anchor Natalie Pujo ("Pujo") who was between 20 and 30 years old. Both Bjorkman and Lynn testified that they believed they were removed from the ten o'clock nightly news because of their age. Ron Allen ("Allen"), a weatherman at KMGH over the age of 40, testified that he was also given increasingly less favorable job assignments at KMGH. At trial, Minshall also introduced evidence of several age-related statements made by Klinzing in reference to the news format, Minshall, and other on-air news personalities who were over the age of 40. McGraw-Hill, however, presented evidence that reporters Bill Clarke ("Clarke") and Paul Reinertson ("Reinertson"), who were over 40 years old, received no less on-air time after Klinzing was employed at KMGH.

Minshall's contract was set to expire in August 1996. Executive Producer Kathleen Sullivan ("Sullivan") testified that she recommended Klinzing not renew his employment. McGraw-Hill presented evidence that Minshall submitted several stories late and submitted a report during a ratings period that was unacceptable. Clarke, a reporter and news anchor, testified that Minshall's scripts were easily recognized for being incomplete and for containing factual errors.

Anchors Bjorkman and Lynn, however, testified that they were of the opinion that Minshall was a good reporter. Lynn testified that his scripts were no worse than other reporters. Allen testified that Minshall was a motivated and tenacious reporter. Minshall testified that, prior to Klinzing's employment, he had never been informed that his script writing or punctuality was a problem.

Klinzing renewed Minshall's contract for six months in August 1996. She, however, wrote Minshall a detailed memorandum summarizing her expectations for his improvement. Klinzing wrote, "At the end of the 6 months, if you're performing up to expected levels, we'll talk about a new contract." By letter, Minshall accepted the conditions of the August 1996 memorandum and the six-month contract.

McGraw-Hill presented evidence that, after accepting the six-month contract, Minshall sometimes failed to attend morning staff meetings, failed to suggest ideas for new stories, and finished assignments immediately before deadlines. McGraw-Hill also presented evidence that, while under the six-month contract, he was assigned to investigate a story for which he failed to interview any witnesses and tried to use videotape that was not of the reported business. Further, McGraw-Hill presented evidence that on another story, Minshall attempted to report about one vehicle while using videotape of another vehicle.

At the end of the six-month contract, Klinzing recommended that Minshall's contract not be renewed. On March 10, 1997, KMGH decided not to renew his contract. KMGH instructed Klinzing not to interview anyone under the age of 40 to replace Minshall.

After KMGH decided not to renew his contract, Minshall chose not to search for employment as an investigative reporter outside of Denver because he did not want to relocate his family. Minshall, however, made telephone calls and sent letters to other television stations in Denver. After failing to obtain employment as an investigative reporter, he attempted to secure employment in public relations. A few months later, Minshall was hired by BVP Media to teach media training. At BVP Media, he earned approximately $70,000 in salary and benefits. Minshall, however, quit this job after approximately one year to work as a self-employed media trainer.

A. Motion for JMOL

The district court denied McGraw-Hill's motion for JMOL. This court reviews de novo the denial of a motion for JMOL. Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 549 (10th Cir.1999). In reviewing the district court's refusal to grant JMOL, this court "draw[s] all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Further, this court does "not weigh the evidence, pass on the credibility of the witnesses, or substitute [its] conclusions for that of the jury." Medlock, 164 F.3d at 549 (quotation omitted). The district court's refusal to grant JMOL will "only [be] reverse[d] if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion." Id. (quotation omitted).

1. Age Discrimination Claims

McGraw-Hill argues that Minshall failed to present sufficient evidence to establish that it discriminated against him on the basis of age when deciding not to renew his contract. See Fallis v. Kerr-McGee Corp., 944 F.2d 743, 744 (10th Cir.1991) (holding that after a full trial on the merits of plaintiff's discrimination claim the remaining "single overarching issue [is] whether plaintiff adduced sufficient evidence to warrant a jury's determination that adverse employment action was taken against him on the basis of age"). After reviewing the record as a whole, this court is satisfied that Minshall offered sufficient evidence on which the jury could reasonably conclude McGraw-Hill's decision not to renew his contract was impermissibly based on his age.

At trial, McGraw-Hill presented evidence that the decision not to renew the contract was based on Minshall's poorly written scripts, tardiness, violations of professional ethics in disclosing the identity of a confidential informant, improper use of video in stories, and public drunkenness at a 1995 Emmy Awards ceremony. Minshall, however, presented contrary evidence that created a jury issue regarding McGraw-Hill's purported reasons for not renewing his contract.

Minshall presented the testimony of Lynn that Minshall's scripts were no worse than any other...

To continue reading

Request your trial
156 cases
  • Front Row Techs., LLC v. NBA Media Ventures, LLC
    • United States
    • U.S. District Court — District of New Mexico
    • January 4, 2016
    ...explained that “issues raised for the first time in a reply are waived.” Tr. at 69:8–12 (Littman)(citing Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273, 1288 (10th Cir.2003) ).It distinguished Burlington Indus., Inc. v. Dayco Corp. and Centocor Ortho Biotech, Inc. v. Abbott Labs., noting......
  • Walker v. Board of Regents of Univ. Of Wis. System
    • United States
    • U.S. District Court — Western District of Wisconsin
    • January 7, 2004
    ...employment action. Carter v. University of Toledo, 349 F.3d 269 (6th Cir.2003) (§ 1981 and Title VII); Minshall v. McGraw Hill Broadcasting, Inc., 323 F.3d 1273, 1280 (10th Cir.2003) (ADEA); Day v. South Park Independent School District, 768 F.2d 696 (5th Cir.1985) (§ 1983); Fekade v. Linco......
  • Reid v. Google Inc
    • United States
    • California Supreme Court
    • August 5, 2010
    ...termination].) Courts have also disagreed as to the ageist nature of the term “old fart.” (Compare Minshall v. McGraw Hill Broadcasting Co., Inc. (10th Cir.2003) 323 F.3d 1273, 1281 [affirmed judgment after jury verdict for plaintiff where comments included company director's statement she ......
  • Racher v. Westlake Nursing Home Ltd.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • September 28, 2017
    ...are entitled "to a verdict uninfluenced by the appeals of counsel to passion or prejudice." Id.; see also Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273, 1285 (10th Cir. 2003). But courts must exercise "great caution" in setting aside a jury's verdict due to an improper argument. Lambert......
  • Request a trial to view additional results
8 books & journal articles
  • Pre-Trial Procedures and Documents
    • United States
    • James Publishing Practical Law Books Litigating Employment Discrimination Cases. Volume 1-2 Volume 2 - Practice
    • May 1, 2023
    ...the employer’s beliefs, and not the employee’s own perceptions of his performance.”). But see Minshall v. McGraw Hill Broadcasting Co. , 323 F.3d 1273, 1286 (10th Cir. 2003) (allowing co-worker opinion testimony with following limiting instruction—“The opinions of the plaintiff’s coworkers ......
  • Defendant's Prior Acts
    • United States
    • James Publishing Practical Law Books Employment Evidence
    • April 1, 2022
    ..., as the testimony could logically be tied to the adverse action taken against Plaintiff. Minshall v. McGraw Hill Broadcasting Co. , 323 F.3d 1273 (10th Cir. 2003), appeal allowed, 323 F.3d 1273. Plaintiff sued his employer alleging a violation of the ADEA. At trial, the Defendant objected ......
  • Proving age discrimination
    • United States
    • James Publishing Practical Law Books Age Discrimination Litigation
    • April 28, 2022
    ...plainti൵ shows there is a nexus between the comments and the adverse employment action. See Minshall v. McGraw Hill Broadcasting Co. , 323 F.3d 1273, 1281 (10th Cir. 2003). While discriminatory comments directed to the plainti൵ establish this causal nexus, even comments about other older em......
  • Remedies available under the adea
    • United States
    • James Publishing Practical Law Books Age Discrimination Litigation
    • April 28, 2022
    ...caused by unlawful discrimination, which means making a reasonable e൵ort to obtain employment. See Minshall v. McGraw Hill Broad Co ., 323 F.3d 1273, 1287 (10th Cir. 2003) (seeking self-employment opportunities in local area deemed su൶cient to mitigate damages, rather than requiring plainti......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT