In Hicks v. KNTV Television, Inc., (160 Cal.App. 4th 994, Cal.App. 6 Dist., March 5, 2008), a California Court of Appeal considered whether a White male television news anchor stated a cause of action for racial discrimination after a television station chose not to negotiate a new contract with him and several months later hired an African-American male to fill the position that the anchor had vacated.
The Court of Appeal held that the news anchor failed to state a cause of action for racial discrimination because the television station stated a legitimate nondiscriminatory reason for not renewing the anchor’s contract, the anchor’s on air performance was not satisfactory, and the anchor failed to show that the station’s proffered reason was pretextual.
Bradford Hicks signed a one-year employment contract with KNTV Television, Inc., in April 2000. The contract contained two one-year extensions, which KNTV chose to exercise. Hicks’s contract was extended to April 30, 2003. During the last year of the contract, KNTV was purchased by NBC, which led to changes in management. James Sanders was hired as vice president and was responsible for the editorial content and production value of the newscasts. Sanders assessed the news anchors and decided to retain most of the anchors, but he also reassigned some of the retained anchors. Sanders, however, chose not to retain Hicks. Sanders found flaws in Hicks’s on-air performance and claims that he spoke to Hicks on five separate occasions. However, Sanders never gave Hicks a formal performance evaluation. Sanders stated that he thought Hicks’s “on-air style was ‘aloof, distant, standoffish, unapproachable, stiff, and too anchor-like.'” In October 2001, a talent development recommendation had been placed in Hicks’s personnel file which stated he needed to stay away from the “‘Mr. Anchorman’ style of delivery.”
Sanders notified Hicks in April 2003 that a new contract would not be negotiated. Sanders chose not to retain several other news anchors, including an Asian-American women, a White woman, and an African-American man. Sanders allowed Hicks to stay at KNTV until August 2003 so that he could try and find a new job. Sanders, however, denied Hicks request to stay on as a reporter. Sanders personally recommended Hicks to another television station.
On September 15, 2003, Sanders hired T.J. Holmes, an African-American male, to replace Hicks. Holmes only had four years journalism experience, compared to Hicks’s 13 years experience. After Hicks left KNTV, new directors at two other stations told him they were not surprised that he lost his job because the station had a “known diversity issue.” For nine months in 2003, KNTV was the only station in the Bay area that did not have an African-American anchor.
Hicks filed a lawsuit against KNTV and NBC (collectively, “KNTV”) for racial discrimination. The trial court granted summary judgment in favor of KNTV.
The Court of Appeal held that the trial court did not err in granting summary judgment in favor of KNTV. When an employee files an employment discrimination case, an employer can successfully move for summary judgment if it presents evidence that “one or more elements of [the employee’s] prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” If an employer sets forth admissible evidence of legitimate, nondiscriminatory factors, the employee then must produce “substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual . . . such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.”
Hicks claimed that KNTV refused to negotiate his contract because it wanted to replace him with an African-American anchor. In response, KNTV claimed that the reason for its refusal to negotiate a new contract was unrelated to Hicks’s race. The reason for the refusal to negotiate was that Hicks “did not project the style or personality Sanders wanted in a KNTV news anchor.” Sanders came in after KNTV got a new owner, observed Hicks for eight months, and decided that Hicks’s “style was aloof and distant, unapproachable and stiff,” and that his performance was not good enough for a television station in the fifth largest market in the country.
The evidence presented by KNTV amounted to sufficient evidence of a legitimate nondiscriminatory reason for refusing to negotiate a new contract with Hicks. The burden then shifted to Hicks “to show that the ‘style’ rationale was a pretext for [KNTV’s] intent to replace him with an African-American.”
Hicks asserted that he was objectively more qualified than Holmes. However, Hicks’s objective qualifications are not relevant because KNTV did not cite to his objective qualifications as a reason for its decision not to negotiate a new contract. The fact that Sanders’s assessment of Hicks was based solely on subjective criteria is not enough to demonstrate pretext. The court acknowledged that subjective evaluations should be closely scrutinized because they lend themselves to discriminatory abuse, but opined “there is nothing inherently suspect in the use of subjective criteria.” While it is possible that a television station could point to an objection to a news anchor’s personality or style as a pretext for unlawful racial discrimination, without evidence “that the station made its decision based upon race, the mere use of subjective criteria does not permit [the court] to second guess the employer’s business judgment.”
Also, Hicks failed to point to a pattern of discriminatory hiring. Sanders decided not to retain five of 11 anchors including three White anchors, one Asian-American anchor, and one African-American anchor. Sanders hired two African-American anchors, a Hispanic anchor, two Asian-American anchors, and a White anchor. The court concluded that Hicks failed to show a preference for any one group over another. Furthermore, Hicks failed to show that Sanders was under pressure to hire an African-American to replace him. In fact, one of the anchors that Sanders chose not to retain was African-American.
Hicks presented no evidence to support his assertion that Sanders’s dissatisfaction with his performance was pretextual. There is no evidence presented that conflicts with Sanders’s opinion of Hicks’s on-air style. In fact, there is evidence in his personnel file to support Sanders’s opinion.
The Court of Appeal concluded that Hicks failed to meet his burden of showing that KNTV’s proffered reason for refusing to negotiate a new contract was pretextual. Accordingly, it affirmed the decision of the trial court to grant summary judgment in favor of KNTV.