07-3149 - Stephen M. DeWalt, Appellant v. Meredith Corporation

U.S. Tenth Circuit Court of Appeals
(April 10, 2008)

Briefs

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Case Summary (prepared at Washburn Law)

Issues Presented

I. Whether the District Court erred in its conclusion that DeWalt has not raised a genuine issue of material fact establishing that he suffered adverse employment actions and was constructively discharged.

II. Whether the District Court erred by concluding DeWalt failed to establish the element of prevasiveness regarding his hostile environment claim.

III. Whether the District Court erred in holding that there was no jurisdiction over some of DeWalt's issues.

Statement of the Case

This case arises out of a claim of "ageism" filed by Dewalt against KCTV-5. The ADEA, Age Discrimination in Employment Act of 1967, makes discriminating against older, but qualified, individuals based solely on their age against the law. In the initial suit, KCTV-5 moved for summary judgment. The District Court granted summary judgment in favor of KCTV-5 for Dewalt's alleged failure to raise any issue of fact showing that he was subjected to a hostile work environment sufficient to qualify as "constructive discharge." Constructive discharge is a term used in employment discrimination jurisprudence to describe conditions of harassment which are so severe or pervasive that an individual believes they have no other alternative but to quit in order to escape the abuses alleged. Also, the District Court ruled that because Dewalt did not file the original action within 300 days of the filing with the EEOC he was time-barred, and thus, could not bring the action.

Appellant's Position

The Appellant, DeWalt claimed he was harassed, demoted, denied vacation, written-up, and denied training in modern news and broadcasting technology and equipment because of his age. The Appellant also claimed that he is not unique in that the alleged discrimination was part of a network policy to change KCTV-5's image from "Old-Meredith" to "New-Meredith." This "New-Meredith" image meant edgier, faster paced broadcasting known by the company as "Live. Late Breaking. Investigative." During the shift, KCTV-5 allegedly began "demoting" or phasing out older employees. For example, the Appellant was placed on the "late shift" which was not only an all night shift but also had less opportunity for success and advancement. The Appellant would "chase stories" throughout the night. KCTV-5 made contradictory statements regarding the reasoning for this move. When questioned about the reasoning behind the shift-change, KCTV-5 stated that he was being moved because a fledgling reporter would benefit from working with a seasoned professional, but also, stated that he was being moved for poor work performance. However, no write-ups or disciplinary had been taken before the station began phasing out "Old-Meredith" for "New."

The Appellant was not the only older individual who felt as if he was being treated differently because of his age however, seven other individuals over the age of forty are cited in the Appellant's brief with similar grievances. In fact, the DeWalt claims that 59% of all employees over the age of fifty-five left or were terminated. Finally, the "constant demoralizing" atmosphere around KCTV-5 got to be too much for the Appellant and he became depressed, began sleeping more often, began losing weight, and his marriage began to suffer. Upon urging from his doctor and wife, as well as being fed up with the atmosphere, he quit.

Appellant argues that the District Court erred when it failed to take into consideration all of the evidence establishing a hostile, discriminatory work environment that a reasonable employee would find abusive. Also, the Appellant argues that DeWalt was not late in filing because the various activities constituted a "pattern or practice" and therefore is not to be measured for the exact date of one occurrence, the "shift change."

Appellee's Position

The Appellee, KCTV-5 argues that despite having his shifts changed, neither DeWalt's payments, nor his responsibilities ever negatively changed. In fact, according to Appellee, his payment only went up, never down. Furthermore, Appellee agrees with the District Court in its determination that the claim should be considered time-barred and all claims should therefore be dismissed. Appellee also claims that the actions alleged, even if not time-barred, are not sufficiently severe or pervasive to constitute a hostile work environment, let alone sufficient to constitute constructive discharge. Under ADEA jurisprudence, or any employment claim for that matter, claimant are required to file with either a state or federal employment commission a complaint alleging harassment. Under the ADEA, timely filing, and exhaustion of administrative remedies are jurisdictional pre-requisites. If neither of these to conditions subsequent are met, neither are the requirements for jurisdiction.

When determining when the clock starts ticking on a claim, one must look at each "discrete act" of discrimination. A "discrete act" is some action taken that negatively affects the individual and is said to be based on a discriminatory motive. Each act starts a new clock ticking towards the 300 day limit. Therefore, the Appellee argues that DeWalt's reassignment and lack of training claim are both time-barred due to the fact that both occurrences occurred over 300 days prior to filing the claim. Furthermore, the Appellees argue that DeWalt should not be allowed to "piggy back" claims of others onto his own claim unless that individual either filed a charge himself, or by some other method, put the employer on notice of multiple complaints. As the facts here do not show that any other individual has filed with the EEOC or state employment body, or, in any other way placed the employer on notice, the "piggy-backing" should be considered unacceptable.

Finally, even if the claims are found not time-barred, the Appellee argues that there are legitimate reasons why DeWalt was fired including his inability to keep up with the demands of the new image of the station, his inability to work well with others, his forgetting to put video tapes in his camera during shoots, loosing a cell phone, and being unreachable by telephone.