(In Lieu of Findings of Fact and Conclusions of Law—FRCP 52(a))
ALDON J. ANDERSON, Senior District Judge.
Wayne Thompson (hereafter "Thompson") brought this race discrimination action against his former employer, Price Broadcasting Company d/b/a KCPX (hereafter referred to as "Price" or "KCPX"), for allegedly discharging him in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e-2000e-17. Trial was held before the bench on February 11-12, 1993, and the matter was taken under advisement.
Having reviewed the evidence presented, and the arguments of counsel for the parties, the Court is now prepared to enter its decision and judgment. Before doing so, however, the Court emphasizes that the only issue before the Court is Thompson's entitlement to relief under Title VII. Other claims made by Thompson against Price, including a claim for common law wrongful discharge, were dismissed earlier in the case when Thompson failed to oppose various motions by Price.
I. FACTUAL BACKGROUND.
Thompson is a 36 year old African-American male who has worked since 1980 in the broadcasting industry. During that time, Thompson has worked in radio production, and has acted as a radio personality ("Disk Jockey"). As a Disk Jockey, Thompson is aware that listeners develop listening habits and loyalty to radio stations because of the particular personalities involved. Thus, radio stations require their Disk Jockeys to make every effort possible to be on at work in sufficient time to go "on the air" for their assigned times slots.
On October 14, 1988, Thompson was hired by Price to work part time as a KCPX Disk Jockey for the Sunday afternoon time slot of 2:00 p.m. to 9:00 p.m. Prior to working for Price, Thompson worked as a Disk Jockey for Radio Station KDAB in Ogden, Utah, where Thompson resided. KCPX is located in Salt Lake City, Utah, and Thompson agreed to provide his own transportation to and from work on Sundays.
Shortly after going to work for Price, Thompson brought a Title VII lawsuit against his former employer KDAB for allegedly firing him because of his race. This lawsuit was publicized in the local newspapers, and a copy of an article relating to the suit was cut out by an unknown employee of Price, and placed on the desk of Thompson's supervisor, David Leppink, whose radio name is Morgan Evans (hereafter "Evans").
A few days after the local newspapers publicized Thompson's suit against KDAB, a snow storm hit the northern parts of Utah. By 4:00 p.m., Mountain Standard Time, on Saturday, November 26, 1988, driving conditions in the Ogden area became hazardous as a result of snowy and icy roads. Thompson, being concerned about the driving conditions, telephoned Evans' home at 4:43 p.m. to inform Evans that he would not be coming into KCPX the next day for his radio slot. Evans was not home, and Thompson left a message on Evans' answering machine.
When Evans returned home at approximately 4:50 p.m. he listened to the telephone message from Thompson and telephoned Thompson's house. Mrs. Thompson answered the telephone, and informed Evans that her husband was not at home, and was at Lionel Playworld in Ogden where he had a second job.
Mrs. Thompson did as she was instructed and telephoned Evans' home thirty minutes later with her husband's reply. Evans had gone out, however, and Mrs. Thompson had to leave another message on Evans' answering machine. She stated that her husband still felt the same way, and that he would not be coming into work the next day. Five hours later, when Evans returned home and listened to his messages, Evans telephoned Mrs. Thompson to get Thompson's telephone number at Lionel Playworld.
When Evans spoke with Thompson at Lionel Playworld, he asked Thompson what the problem was. Thompson responded that KCPX did not pay him enough to risk his life driving down to Salt Lake City to do a shift. Evans responded that he needed someone he could count on every Sunday, regardless of the weather. When Thompson stated he would not be coming down to Salt Lake City the next day for the 2:00 p.m. shift, Evans fired him.
Following his firing by KCPX, Thompson brought race discrimination claims against Price before the Anti-Discrimination Division of the Industrial Commission of Utah ("ICU") and the Equal Employment Opportunity Commission of the United States ("EEOC").
There are two theories of employment discrimination under Title VII: disparate treatment and disparate impact. The disparate treatment theory focuses on the employer's intent to discriminate. See Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Disparate impact, on the other hand, requires no proof of discriminatory intent. Rather, a plaintiff need only show that the employer's practices are "discriminatory in operation." Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971).
At trial, Thompson only sought relief for disparate treatment under Title VII; specifically discriminatory discharge under 42 U.S.C. § 2000e-2, and retaliatory discharge under 42 U.S.C. § 2000e-3.
A. The Burden of Proof
In Trujillo v. Grand Junction Regional Ctr., 928 F.2d 973 (10th Cir.1991) the Tenth
Id. at 976-77, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
B. The Prima Facie Case
1. Thompson's Discriminatory Discharge Claim
Title VII of the 1964 Civil Rights Act makes it unlawful for an employer "to discharge any individual, or to otherwise discriminate against any individual ... because of such individual's race." 42 U.S.C. § 2000e-2(a)(1) (1988).
See Johnson v. Westinghouse Elec. Co., 752 F.Supp. 1000, 1002 (D.Utah 1990) (citations omitted).
The court is persuaded that Thompson met the burden of establishing a prima facie case of discriminatory discharge. In that regard, Thompson, an African-American man, is a member of a protected class. Further, Price did not dispute that Thompson was qualified for the Disk Jockey job. Price conceded that Thompson has been involved in the radio broadcast industry for a number of years, and had performed his job at KCPX for six weeks without complaint from management as to his performance. Despite being qualified for the job, Thompson was discharged. Finally, while there was a dispute between the parties as to who took over Thompson's radio time slot, there is no question that someone handled the air time.
2. Thompson's Retaliation Claim
The Court is also persuaded that Thompson met his burden to establish a prima facie cause of action for retaliatory discharge
42 U.S.C. § 2000e-3(a).
The Tenth Circuit Court of Appeals has held that in order for a plaintiff to establish a prima facie cause of action for retaliation, the plaintiff must show by a preponderance of the evidence, that:
Archuleta v. Colorado Dep't of Inst., 936 F.2d 483, 486 (10th Cir.1991).
Thompson established that he was engaged in a protected activity at the time of his discharge from KCPX. In that regard, although there exists no business relationship between KDAB, the station against whom Thompson brought his discrimination suit, and KCPX, the law does not require such a relationship. See Womack v. Munson, 619 F.2d 1292 (8th Cir.1980) cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). If a relationship between employers was required, claimants would be discouraged from filing discrimination claims against former employers because of the fear that their present employers, upon learning of the claims, would fire them. The purposes of Title VII would, therefore, be frustrated.
Thompson also established the second requirement of a retaliation claim, by showing that subsequent to his filing of a suit against KDAB, he was fired by Price. Termination of employment clearly constitutes an "adverse action by the employer subsequent to the protected activity." Archuleta v. Colorado Dep't of Inst., 936 F.2d 483, 486 (10th Cir.1991).
Finally, Thompson established, as a result of the timing of his discharge by KCPX and the filing of the claim against KDAB, that a causal connection existed between the protected activity and the adverse action, at least for purposes of proving a prima facie case.
C. Nondiscriminatory Reason for Termination
Having found a prima facie case for Thompson's discriminatory discharge claim and retaliatory discharge claim, the burden of production shifts to Price to show "a legitimate non-discriminatory reason for terminating the employee." Bocage v. Litton Systems, Inc., 702 F.Supp. 846, 851 (D.Utah 1988) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). In meeting its burden, Price need not prove that it was actually motivated by its non-discriminatory reason. As noted by the United States Supreme Court:
At trial, Price presented credible evidence that on the day before Thompson was to report to work, Thompson telephoned his supervisor at KCPX, Morgan Evans, to inform Evans that he was not going to come to work because of adverse weather conditions. Evans informed Thompson that the weather was not that bad, and that he expected him to report to work. When Thompson continued to refuse to commit to come to work, he was fired.
A refusal to work is a legitimate nondiscriminatory reason for terminating an employee. See E.E.O.C. v. Wendy's of Colorado Springs, Inc., 727 F.Supp. 1375, 1385 (D.Colo.1989):
In the radio broadcast industry, management is constantly concerned with the concept of "listener expectation." That concept is that listeners have expectations that when they tune to a certain radio station at a certain time, a particular music or news format will be in the process of being presented, and that a certain disk jockey will be on the air. By consistently fulfilling the listener's expectations, the radio station keeps the listener's loyalty, and can ask advertisers to pay for the privilege of broadcasting their messages to the listener. For the foregoing reason, broadcast employers legitimately expect their Disk Jockeys to make every effort possible to be on the air when scheduled. Thompson was unable to satisfy Price that he would make that effort. The Court determines, therefore, that Price had a legitimate reason to terminate Thompson.
Price, having met its burden to articulate a legitimate nondiscriminatory reason for firing Thompson, the burden of proof shifts back to Thompson "to show that the employer's reason for termination is merely a pretext for discrimination." Bocage, 702 F.Supp. at 851 (citations omitted). Pretext can be shown "either directly by persuading the court that discriminatory reasons more than likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Beck v. Quiktrip Corp., 708 F.2d 532, 535 (10th Cir.1983) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1980)).
Thompson attacked the credence of Price's proffered reason for discharging Thompson, by arguing that when he called Evans, KCPX's broadcast manager, on November 26, 1988, it was to merely inquire whether he could be excused from work and was not, as Price argued, a refusal to work. Thompson's argument was not supported by the evidence, however. Exhibits presented at trial clearly demonstrate that Thompson did not request a day off, but rather informed KCPX that he would not be coming to work the next day. Even if Thompson's initial telephone call to Evans on Saturday afternoon had been a request for Sunday off, Evan's turned down the request, and informed Thompson, through Mrs. Thompson, that Thompson was expected to report to work the next day. Instead of complying with the employer's demand, Thompson informed Evans, Saturday evening, that KCPX
Having failed to undercut the credence of Price's articulated reason for discharging Thompson, plaintiff next tries to prove pretext by arguing that "discriminatory reasons more than likely motivated [Price]" in firing Thompson. Beck v. Quiktrip Corp., 708 F.2d at 535. In that regard, Thompson argues that the timing of the discharge is simply too close in time to Evans receiving notice of Thompson's lawsuit against KDAB, three to five days, to not establish that Evans and KCPX were motivated, at least in part, by the KDAB lawsuit in deciding to fire Thompson.
The difficulty with Thompson's "motivation" argument is that there is no evidence, other than the timing of the two events, to show that the news article relating to Thompson's lawsuit against KDAB played any part in the firing of Thompson by KCPX. This is not a case like Womack v. Munson, 619 F.2d 1292 (8th Cir.) cert. denied (1980), where the Eighth Circuit Court of Appeals found that the stated reason for discharging an investigator by a state district prosecutor was merely a pretext for firing because the decision to fire was made within a few days of the investigator having filed a discrimination lawsuit against his former employer, the county sheriff. In that case, the prosecutor called the investigator into his office immediately after learning about the lawsuit against the sheriff to inform the investigator that the lawsuit put the prosecutor's office in an embarrassing position. The prosecutor then asked the investigator to take a leave of absence, with pay, from the prosecutor's office and to look for other work. The Eighth Circuit Court of Appeals found that only after the investigator said that he did not want to get another job did the prosecutor start an investigation to determine if there was a "legitimate" reason to fire the investigator.
Unlike Womack, supra, in this case, Thompson, not Price, initiated the contacts which led to Thompson's termination. Price did not discuss the KDAB suit with Thompson, and did not look for an excuse to fire Thompson after finding out about the lawsuit. On the contrary, the evidence shows that when Evans was first informed by Thompson that Thompson was not coming in to work the next day, Evans did not fire Thompson but, rather, gave Thompson an opportunity to say that he would be coming into work. The Court is convinced that if Thompson had simply informed Evans on November 26, 1988, that he would be at the radio stations for his assigned time slot on Sunday, Thompson would not have been fired.
Even if Evans "had in mind" the KDAB lawsuit at the time that he fired Thompson, and there is no direct evidence that he did, Thompson's Title VII claims would still fail.
Thompson did not raise the possibility that Price may have had mixed motives in firing him. If he had raised the possibility, however, the Court is convinced, after reviewing the evidence, that the result would be same. That is, the Court finds that Price would have discharged Thompson on November 26, 1988, even if no lawsuit had been previously filed by Thompson against his former employer, KDAB. Price needed Disk Jockeys that it could count on to make every reasonable effort possible to make their assigned shifts regardless of the weather. Thompson was not willing to make that effort.
While Thompson established a prima facie case under Title VII on both his retaliatory discharge and discriminatory discharge claims, he was unable to show by a preponderance of the evidence that Price's legitimate nondiscriminatory reason for discharge was a pretext. No violation of Title VII was shown and judgment will be entered for the defendant, no cause of action on plaintiff's complaint. The court declines to award attorney fees under 42 U.S.C. § 2000e-5(k) for the reason that plaintiff was able to establish a prima facie case. See E.E.O.C. v. Wendy's of Colorado Springs, Inc., 727 F.Supp. 1375, 1386-87 (D.Colo.1989).
Id. at 7. The statement sets forth in succinct fashion the evidence in this case.
No direct evidence of discriminatory intent was presented by Thompson. See footnote 9 supra.