The 10th Circuit Court of Appeals ruled last week in the case of DeWalt vs. Meredith, also known as the last of the KCTV-5 Old-Timers lawsuits.
You may recall I wrote about these cases last year. They were significant because they marked the first time former employees of Kansas City's CBS affiliate went on the record to document the hellish months in 2002 and 2003 when new management imposed a new "live, late-breaking, investigative" format on the newsroom. Senior staff had their shifts handed over to kids half their age. Crazy stuff made it on the air, some of which probably shouldn't have. There was much yelling, and crying and what a judge later concluded was "arguably retaliatory conduct."
Unfortunately, none of that was able to help Stephen DeWalt, a 31-year veteran of KCTV-5, in his case against Meredith. Even worse, DeWalt or his attorneys seem to have suffered a couple of ... um ... senior moments that made it a lot easier for an appellate judge to deny his claim.
DeWalt and two other former KCTV-5 staffers, Stu Lebow and Tom Talbert, filed age discrimination and harassment suits against Meredith Corp., publisher of fine middle-America magazines and owner of what everyone agreed was a chain of sleepy, self-satisfied TV stations. In 2002 the company decided to shake things up. It brought in people person Kevin O'Brien — remember him? — to turn around ratings in his usual charming, low-key manner. New management was already in place at KCTV-5 by the time of O'Brien's arrival, but they got with the program immediamente. As a result, KCTV-5 went from a distant second to first or a competitive second in newscast after newscast. It made Katie Horner a weather star. And it brought back investigative journalism (though sometimes in name only) to KC. More than that, it forced other stations to react to its moves, effectively stealing the mojo of longtime market leader KMBC-9.
But as the lawsuits made clear, there was a human cost. I wrote in 2007:
Stuart A. Lebow, who directed newscasts at KCTV from 1996 to 2003, said that age discrimination and harassment were widespread inside the newsroom during this period, resulting in dozens of older staffers leaving.
According to Lebow’s lawsuit, senior employees were singled out for criticism, reassigned to less desirable shifts and generally treated differently from younger, more recent hires.
Lebow says that when he complained to a company official, management put him on probation. His claims are buttressed by two similar lawsuits and numerous affidavits from former KCTV employees alleging rampant age bias at the station.
A judge agreed, saying KCTV had engaged in "arguably retaliatory conduct" against Lebow. Meredith settled with him shortly after that, just as it had already done with Talbert. But DeWalt's case was thrown out. His attorneys appealed. And now, that has been thrown out.
Reading through the court's order, however, I found some peculiar things. Our legal affairs writer, Dan Margolies, agreed with me: They are peculiar. For starters, DeWalt waited over a year before filing his charge with the Equal Employment Opportunity Commission. Did he not know there was a (fair or unfair) 300-day window between the time of discrimination and the time you need to file your claim?
Then there was the whole proving-you'd-been-forced-out thing. In legalese, this kind of discrimination is called "adverse employment action." In his appeal, DeWalt said that he had seven weeks of vacation coming in 2002, but by the fall he'd only gotten two weeks' worth. He said he'd asked for more time off but never gotten a response from his manager. "DeWalt cites the lack of response to his request to take vacation time as an adverse employment action," the ruling reads. Uh ... except somebody forgot to ASK for vacation time, it turns out:
If Meredith had denied a vacation request, we would certainly consider this an adverse action, because such conduct would significantly affect DeWalt’s benefits. See Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1245 (8th Cir. 1998). DeWalt, however, did not formally request vacation, nor was vacation actually denied. Rather, DeWalt claims that he asked to "sit down" with (supervisor) Kurtwright to discuss his vacation plans, but that this conversation never occurred.
OK, but DeWalt and Lebow went through this death camp together, right? So at the very least, Lebow's successful EEOC claim (in the sense that KCTV decided to settle with him rather than let it go forward) would be a useful document for DeWalt's appeal. Right? Yes, according to the appeals court, that would have been a very useful document. Except ...he forgot to enclose it.
And I quote: "DeWalt has failed, however, to include a copy of Lebow’s EEOC charge in the record." Sure enough, a footnote reads:
In his appellate reply brief, DeWalt claims that "the Lebow Charge of Discrimination [is] attached hereto," but the brief does not include such an attachment.
Yet another footnote records that in his deposition DeWalt claimed to have a memo that "talked about dismissal," but again, "he could not provide a copy of it."
No one's suggesting here that Stephen DeWalt was tiptoeing through the tulips the last two years of his long tenure at KCTV-5. But he was, the court notes, paid like a 31-year staffer and dues-paying union member ought to be. And the ineptitude with which he and his attorneys seem to have handled the case — here is the order if you want to see for yourself — does suggest that he sued because he was mad at losing his livelihood and not because he had that strong of a case.
Well, it's hard to get too worked up about this. TV news has always been heavy on age discrimination, at least among women -- who seem to cease existence after their late 30s. Furthermore, while the "live, late-breaking, investigative" claims at Channel 5 were laughable, it's not at all like they were doing serious journalism until they made that big shift. They sucked before "live, late-breaking, investigative", they sucked during that era, and they continue sucking.
Posted by: Helen Hightower | August 10, 2008 at 05:20 PM