Employment Law Daily Positive performance reviews, comments about younger replacement show pretext for news anchor’s firing
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Friday, August 24, 2018

Positive performance reviews, comments about younger replacement show pretext for news anchor’s firing

By Tulay Turan, J.D.

A female news anchor can proceed with her age and gender discrimination claims where she presented evidence that the reasons for her termination—unsatisfactory performance on- and off-air and absence at meetings—were pretext, a federal district court in Kansas ruled. She showed she received positive performance reviews and was replaced by a younger employee (Fuller v. Meredith Corp., August 20, 2018, Lungstrum, J.).

A television news station employed the anchor beginning in 2003. In January 2015, the station’s general manager, in consultation with the news director, decided not to renew the anchor’s contract when it expired in April of that year. Before she was informed of that decision, the general manager was replaced. The new general manager conferred with the news director and also decided the anchor’s employment would be terminated. The anchor, who was 47 years old when she was terminated, brought claims for age and gender discrimination. The employer filed a motion for summary judgment on both claims.

“Age-plus-gender” claim. As a preliminary matter, the court rejected the employer’s argument that it was entitled to summary judgment on the anchor’s ADEA claim because she conceded in her deposition that her gender also played a role in the termination decision. The employer argued that because the decision was based also on her gender, age could not have been the “but-for” cause of the termination. The court clarified that in Gross, which held that the ADEA did not allow for mixed-motive claims, the Supreme Court meant only that it was not sufficient to show that age was a mere motivating factor and that but-for causation was required. “Whether or not gender was also a motivating factor, to succeed on this claim plaintiff will be required at trial to show that age was the determining factor,” the court wrote. In the deposition, the anchor merely conceded that age was not the sole factor in the termination decision. She did not concede that age was not the but-for cause of that decision. Thus, that testimony did not provide a basis for summary judgment on the ADEA claim.

Subjective criteria points to pretext. Because the anchor’s prima facie case and the employer’s legitimate nondiscriminatory reason for termination were not in dispute, the court turned to the pretext issue, finding the totality of the evidence created a reasonable inference the employer’s stated reasons were pretextual. The employer asserted the anchor was terminated because of poor on- and off-air performance and conceded that the quality of an anchor’s performance was a matter of subjective opinion. The employer did not rely on any numerical or other objective evaluation of her performance. Accordingly, because the employer “relied entirely on subjective criteria that are more susceptible to manipulation and less able to be disputed objectively, plaintiff’s other evidence of pretext becomes even stronger.”

That other evidence showed the new general manager decided to terminate her with very little input from those most familiar with her performance. The credibility of that decision was also undermined somewhat by the scarcity of supporting evidence that her performance was in fact poor. The employer did not produce any documentary or video evidence of poor performance, previous negative evaluations, or written complaints about her.

Positive appraisals. Further, the anchor provided evidence that her performance was in fact good. The employer kept her as an anchor for 11 years, renewing her contract multiple times and allowed her to anchor during the important February sweeps period even after the station managers had decided to terminate her. In addition, her performance appraisals were positive. Although the evaluations were made by a previous news director who was not involved in the decision to terminate her, they referred specifically to issues later cited by the employer, such as the extent to which she was a team player and a newsroom leader. The appraisals provided evidence the employer’s citation to those issues in terminating the anchor was pretextual.

Allowed to be absent. Regarding her absence from editorial meetings, the evidence showed the news director sanctioned her absences because of other duties. She explained in an email that she had not been in the meetings because she was doing additional work for the 4 p.m. telecast. The news director responded “No problem, I understand you’re doing more shows than usual.” He did not respond that her attendance was important or that her absence would affect her on-air performance. Evidence the employer did not in fact worry about such absences serves as evidence of pretext.

Age-related comments. Lastly, the anchor presented evidence of two comments that provided some evidence of pretext. The anchor was replaced by 32-year-old female. After viewing a video of her work, the news director said she had a nice Midwestern “hometown girl” look. Although he testified that in using that language he meant she had a “wholesome, friendly, relatable appearance,” he further testified that he would not say Barbara Walters had a “hometown girl” appearance because of her age. Thus, he conceded there was an age-related component to the reference.

In addition, the station’s creative director made comments about the replacement anchor’s appearance to the news director. The exchange between the two, which the news director (a decisionmaker) solicited, provided evidence from which once may reasonably infer that the director relied on and adopted the statement and that he valued youth as a preferable quality for the female anchor position. Thus, the court concluded the stated reasons for the termination decision were not genuine and were, therefore, pretextual and impermissible, making summary judgment inappropriate.

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