Ryther v. KARE 11

Decision Date31 May 1996
Docket NumberNo. 94-3622,94-3622
Parties70 Fair Empl.Prac.Cas. (BNA) 1709, 68 Empl. Prac. Dec. P 44,107, 65 USLW 2027 C. Thomas RYTHER, Plaintiff-Appellee, v. KARE 11, an NBC Affiliate; Gannett Co., Inc., Defendants-Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Thomas Tinkham, Minneapolis, Minnesota, argued for appellants (Karen L. Clauson, on the brief).

Donna L. Roback, Bloomington, Minnesota, argued for appellee (Marcy R. Kreisman, on the brief).

Before LOKEN and LAY, Circuit Judges, and VAN SICKLE, * District Judge.

LAY, Circuit Judge.

KARE 11, a Twin Cities television station, refused to renew C. Thomas Ryther's contract as lead sportscaster for a fifth three-year term. In 1991, when Ryther was terminated, he was fifty-three years old. Ryther sued KARE 11 and its parent, Gannett Co., Inc. (collectively "KARE 11"), alleging a violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Following a jury verdict in Ryther's favor, the district court, the Honorable David S. Doty presiding, denied a motion for a new trial and, alternatively, a motion for judgment as a matter of law. The court entered judgment awarding Ryther $1,254,535 in back pay, front pay, liquidated damages, and attorneys' fees. See Ryther v. KARE 11, 864 F.Supp. 1510 (D.Minn.1994). KARE 11 appeals. We affirm the judgment of the district court.


Ryther served as a sports anchor for Channel 11 from December 1979 until July 1991, pursuant to a series of four three-year In the summer of 1988, Ryther was approximately fifty years of age. Ryther's responsibilities began changing that year, shortly after Mason's appointment to vice president. KARE 11 removed Ryther from Prep Sports Extra, which he then co-anchored with Shaver, and during 1989, the year in which Linda Rios Brook became station manager, Mason removed Ryther from the six o'clock news and assigned him to a recreational segment on the five o'clock news. Passolt replaced Ryther as sports anchor during the six o'clock time slot. In May 1990, Shaver was named executive producer of sports, a position to which Ryther was entitled under his contract. Shaver assumed many of Ryther's organizational and planning duties.

contracts. Gannett/KARE 11 purchased the station in 1983, and in 1988 Janet Mason became KARE 11's vice president of news. At that time, the sports department's members included Jeffrey Passolt and Randy Shaver, both under age 40. Ryther then appeared on the six o'clock and ten o'clock news and hosted a weekly show, "Prep Sports Extra," during the football season. Passolt did a sports feature on the five o'clock news and, along with Shaver, served as weekend sports anchor.

On March 6, 1991, shortly after Ryther discovered he was being excluded from promotional photos, Ryther confronted Mason about the status of his contract. Mason told him his contract would not be renewed because he had failed in the market research. After several events detailed in the district court's opinion, Ryther, 864 F.Supp. at 1515-16, Ryther left KARE 11 and filed this lawsuit.

The decision not to renew Ryther's contract was made by Rios Brook, Richard Modig, Vice President of Broadcast Operations, and Mason. When Rios Brook was asked at trial what market research she "relied on" in making the decision about Ryther, she responded that it was the "Gallup" research, in reference to a survey conducted for KARE 11 in June 1990 by the Gallup Organization ("1990 Gallup Survey"). Tr. IV-136. Mason, similarly, said that she arrived at that decision after she got the 1990 Gallup Survey. Tr. V-194, V-197.

In earlier years, 1981 and 1989, there had been other market research, performed by the Atkinson-Farris Communications research firm ("Atkinson"), to determine KARE 11's ratings. In 1981, the Atkinson research found that Ryther was "not impressive" and that his quality score was "extremely low." In 1989, Atkinson again did a survey for KARE 11 and found sports "the softest part of your team." Ryther had "virtually the same ratings" as he had in 1981.

In 1990, partially because KARE 11 found the Atkinson research incomplete, KARE 11 sought new market research by commissioning the 1990 Gallup Survey. The 1990 Gallup Survey reported that Ryther had seventy-six percent viewer recognition, whereas Mark Rosen, a sportscaster at competitor WCCO, had eighty-one percent recognition. Rosen was rated number one and Ryther number two in the overall Twin Cities' market. The 1990 Gallup Survey reported that Ryther "underperform[ed]" and that he was not a strong player for KARE 11. 1

KARE 11 urges that, upon receipt of the 1990 Gallup Survey, Mason, Rios Brook, and Richard Modig, KARE 11's vice president of operations, made the decision not to renew Ryther's contract in August 1990. The primary issue at trial, and also on this appeal, is whether the overall market research was the true reason for Ryther's dismissal, or merely a pretext for age discrimination. Ryther asserts that he offered evidence to show that this was not true, that in fact the decision was made prior to that time, and that the research was biased and merely a pretext for unlawful age discrimination.

The district court, in overruling KARE 11's motion for judgment as a matter of law, carefully summarized the evidence from which a jury could reasonably find that the alleged nondiscriminatory reason for refusing to rehire Ryther was false. In this regard, Judge Doty found that there was sufficient evidence for the jury reasonably to conclude that: the defendants made the decision not to renew Ryther's contract before the 1990 Gallup Survey was undertaken; some of Ryther's duties had been transferred to younger people and that his contract was not renewed despite positive performance evaluations from KARE 11; KARE 11 deceived Ryther by leading him to believe that his work was commendable, in order to prevent him from improving upon his alleged deficiencies; the 1990 Gallup Survey was purposely designed so that Ryther would not get a fair rating, thus masking the discriminatory reason for his termination; and KARE 11 provided a hostile work environment for Ryther because of his age. Ryther, 864 F.Supp. at 1515-18. 2

Our standard of review of this evidence is governed by settled rule:

[W]e must consider the evidence in the light most favorable to [Ryther], assume all conflicts in the evidence were resolved by the jury in [Ryther's] favor, and give [Ryther] the benefit of all favorable inferences that may reasonably be drawn from the proven facts. A judgment [as a matter of law] should be granted only when all the evidence points one way and is susceptible of no reasonable inferences sustaining [Ryther's] position.

Frieze v. Boatmen's Bank, 950 F.2d 538, 540 (8th Cir.1991) (internal citations and quotations omitted). 3

Stated another way, it is well settled that we will not reverse a jury's verdict for insufficient evidence unless, after viewing the evidence in the light most favorable to the verdict, no reasonable juror could have returned a verdict for the non-moving party. Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996).


The law governing the allocation of evidentiary burdens in age discrimination cases like this one is well established. See generally St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 & n. 4, 113 S.Ct. 2742, 2749 & n. 4, 125 L.Ed.2d 407 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06, 93 S.Ct. 1817, 1823-26, 36 L.Ed.2d 668 (1973). 4 KARE 11 does not contend that Ryther failed to establish a prima facie case of age discrimination. There exists ample evidence that the jury could reasonably believe that (1) Ryther was within the protected age group (he was fifty-three years old); (2) as manifested by his contract renewals and KARE 11's own evaluations, he had been performing his job at a satisfactory level for over twelve years; (3) his contract in 1991 was not renewed; 5 and (4) KARE 11 replaced him with a younger person. (Jeff Passolt was only thirty-three years of age and did not have as high of a performance rating as Ryther.)

The dissent urges that, once KARE 11 articulated a non-discriminatory reason for its actions, it was entitled to a judgment as a matter of law because it destroyed plaintiff's prima facie case. The articulation of a non-discriminatory reason by the employer destroys the legal presumption of plaintiff's prima facie case, and plaintiff is therefore no longer entitled to a judgment as a matter of law. Hicks, 509 U.S. at 510, 113 S.Ct. at 2749. However, as Hicks and Burdine make clear, if the employee can demonstrate that the reason given for the employer's action is pretextual, then the case moves to a new level of factual inquiry. Id. at 515, 113 S.Ct. at 2752 (citing Burdine, 450 U.S. at 255, 101 S.Ct. at 1094). Under these circumstances, assuming that there exists credible and substantial evidence of pretext, the plaintiff may still rely upon the elements of the prima facie case and the substantial evidence of pretextuality With this in mind, we again turn to the fundamental issue in this case: whether Ryther produced sufficient evidence to allow a jury reasonably to find that KARE 11 intentionally discriminated against him on the basis of his age. Although much of the evidence is circumstantial, we agree with the district court's careful analysis that a reasonable jury could infer that KARE 11's asserted reason for discharge was false, and that the evidence was sufficient to allow a jury to find that KARE 11 engaged in age discrimination. 6

to urge to the trier of fact that the employer was guilty of intentional discrimination. Id. There is no synergistic formula to determine whether the elements of a prima facie case and pretext are sufficient to allow a jury to make a...

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