Walter v. KFGO Radio

• Decision Date: 04 August 1981
• Docket Number: No. A3-80-20.,A3-80-20.
• Citation: 518 F. Supp. 1309
• Parties: Beverly A. WALTER, a/k/a Beverly A. Schanilec, Plaintiff, v. KFGO RADIO, a Subsidiary or property of Communication Property, and Richard Voight, Defendants.
• Court: U.S. District Court — District of South Dakota

518 F. Supp. 1309

Beverly A. WALTER, a/k/a Beverly A. Schanilec, Plaintiff, v. KFGO RADIO, a Subsidiary or property of Communication Property, and Richard Voight, Defendants.

No. A3-80-20.

United States District Court, D. North Dakota, Southeastern Division.

August 4, 1981.

COPYRIGHT MATERIAL OMITTED

Herschel Lashkowitz, Fargo, N. D., for plaintiff.

H. Patrick Weir and Douglas R. Herman, Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, N. D., for defendants.

MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT

BENSON, Chief Judge.

Plaintiff in this action, Beverly Walter, alleges she was wrongfully discharged from her employment by defendants KFGO Radio and Richard Voight, general manager of KFGO. Plaintiff contends her discharge was based on age and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17 and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (ADEA). Plaintiff seeks compensation for loss of earnings and benefits due to alleged wrongfully denied promotions, back pay with interest, reinstatement, injunctive relief, and attorney fees and costs.¹ Defendants deny the allegations. Jurisdiction is based on 28 U.S.C. § 1331. The case was tried to the court.

FINDINGS OF FACT

Plaintiff was born in Oakes, North Dakota on March 8, 1934. She graduated from Oakes High School in 1951 and held various jobs until she was hired by the local radio station in 1959. While working for the Oakes station, plaintiff became involved in all facets of radio work including sales, production, copy writing, farm and general programming, and broadcasting.

Plaintiff left the Oakes station and joined KFGO (then called KXGO) in 1965 as Continuity Director. In that position, plaintiff continued to work in sales and copy writing. Additionally, plaintiff co-hosted a radio talk show, Wide Wide World, which aired from 8:30 a. m. until 10:00 a. m., Monday through Friday. Duties relating to Wide Wide World included producing the show, setting up guest interviews, talking with listeners who phoned in, answering listener mail, and selling commercial time for the program. The show, which was later called the Odd Couple show, was primarily a talk show including household hints, recipes, guests and listener participation in its format. At some point, the show was limited to a one hour time slot from 9:00 a. m. to 10:00 a. m.

In October of 1969, plaintiff took on additional duties as KFGO Farm Director. KFGO's farm programming at that time was loosely structured. Plaintiff initiated a number of additions to the farm program, including county agent reports, market reports, and local stockyard reports. The position required plaintiff to be on the air at 6:00 a. m. Plaintiff thus worked from about 5:30 a. m. until 1:00 or 2:00 p. m. and often put in hours beyond these times. She also continued her other work at the station.

In 1973, at the request of his employer, Communication Property, Inc. which had recently acquired KFGO, Richard Voight joined KFGO as general manager. Voight has remained general manager to date. As general manager, Voight oversees and supervises the day to day operation of the station and is the top officer in the KFGO hierarchy. When Voight joined KFGO, it was a low budget station with a skeleton staff of fourteen employees. KFGO had no program director, no sales manager and only one news person. KFGO lost money in 1969 and 1970 and when Voight joined the staff in 1973, it was the least profitable of three stations owned by Communications Property, Inc. In his position as general manager, Voight was plaintiff's supervisor.

During late 1973 or early 1974, Voight learned via a rating service known as the Doane Survey² that KFGO's farm programs had a much smaller listenership among farmers than did the rival station, WDAY. WDAY used the survey results in a sales brochure which graphically demonstrated that WDAY had four to six times the listenership of KFGO during the hours of 6:30 a. m. to 8:00 a. m., when farm programming is typically offered. The brochure also stated that 41% of farmers rated WDAY first in providing the most useful and reliable farm markets and news. KFGO rated 16.7% in this category. These survey results prompted KFGO to revamp its farm programming. In March of 1975, KFGO hired Ron Torkelson in a co-farm director capacity. Torkelson had a master's degree in agronomy, was a recognized sugar beet specialist, and was respected by farmers and persons involved in agriculture. He was hired to provide technical expertise to the farm programming. After negotiations as to salary, Torkelson joined KFGO at a $19,000 annual salary. Plaintiff, as co-farm director, was paid $12,000 in 1975.

Torkelson left KFGO in December of 1975. Plaintiff acted as sole farm director until Larry Ristvedt joined KFGO in April of 1976. Ristvedt received a $13,000 annual salary for 1976, as did plaintiff. Ristvedt had a degree in economics and marketing and experience with commodities futures markets. Ristvedt worked from 5:30 a. m. to 1:00 or 2:00 p. m. and returned to the station at 4:30 p. m. for another hour. In September of 1976 plaintiff resigned as co-farm director and became Public Relations Director for KFGO.

Plaintiff received no formal job description, but was told to keep on doing what she had been doing, including continuing her duties connected with the Odd Couple show. The public relations job primarily required plaintiff to act as a liaison between the station and the public.

In 1977, the Arbitron Radio Service, a rating service which surveyed the general listening audience, revealed that in the April-May survey period, at the 9:00 a. m. to 10:00 a. m. Odd Couple time slot, WDAY had 37.4% of the listening audience while KFGO had only 23.2%. In April-May of 1978, during this same time slot, WDAY had 30.3% of the listenership, while KFGO had 29.1%. This was the only hour in which KFGO had fewer listeners than WDAY. In July of 1978, the Odd Couple show was cancelled. Plaintiff was then offered a newly created position as Promotions Director. The position required promoting KFGO throughout the listening area, as well as some travel and weekend work. After much discussion and deliberation, plaintiff did not accept the position, which was never filled. Plaintiff took the month of September off. In October she returned to the station, but had no specified job. Voight offered plaintiff four to six weeks of severance pay and suggested she look for a job elsewhere. Plaintiff, who was then 44 years old, left the station in October. She looked for other work, but found nothing similar in nature. Plaintiff has remained unemployed since October of 1978.

APPLICABLE LAW

The recent case entitled Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) holds that a plaintiff in a Title VII case bears the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Id. at 251, 101 S.Ct. at 1093. If a prima facie case is proven, the burden shifts to defendant "to articulate some legitimate, non-discriminatory reason for the employee's rejection." Id. quoting McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Should defendant carry this burden, plaintiff then must prove by a preponderance of the evidence that the reason offered by defendant was not the true reason, but merely a pretext for discrimination. 450 U.S. at 251, 101 S.Ct. at 1093. The burden of persuasion never shifts, but remains at all times with plaintiff. Id.

This analysis holds true for age discrimination cases as well as sex discrimination cases. See Cova v. Coca-Cola Bottling Company of St. Louis, 574 F.2d 958, 959-60 (8th Cir. 1978). See also Sutton v. Atlantic Richfield Company, 646 F.2d 407, 411 (9th Cir. 1981) and cases cited therein. This is because the purpose of the ADEA and Title VII are the same, to eliminate arbitrary discrimination in the workplace. As the Supreme Court has stated, "the prohibitions of the ADEA were derived in haec verba from Title VII." Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978). Compare 42 U.S.C. § 2000e-2(a)(2) with 29 U.S.C. § 623(a)(2). Bearing this standard of proof and burden of persuasion in mind, the court will examine each of plaintiff's theories of recovery.

I. AGE DISCRIMINATION

To establish a prima facie case of violation of the ADEA, plaintiff must show 1) she is within a protected age group, 2) she has met applicable job qualifications, 3) despite these qualifications, she was discharged, and 4) after the discharge, the position remained open and the employer continued to seek applications from persons with similar qualifications. Cova, supra at 959. These factors permit an inference of discrimination because, when proved, they show rejection was not based on either of the "two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n.44, 97 S.Ct. 1843, 1866 n.44, 52 L.Ed.2d 396 (1977).

At the time of her departure from KFGO in October of 1978, plaintiff was 44 years old. She was therefore within the protected age group of persons between the ages of 40 and 70. 29 U.S.C. § 631(a). Plaintiff was also well qualified for the position of Promotions Director which was offered to her. A number of witnesses in the broadcasting field testified to her favorable reputation, professionalism, and ability to relate well to the public. As to plaintiff's discharge from the position, it is more correct to state that plaintiff did not accept the replacement position offered to her. Though plaintiff contends she was constructively discharged from her position with the station, the...