Hicks v. KNTV Television, Inc.

Facts

Bradford Hicks signed an employment contract with KNTV in April 2000 for a one-year term (May 1, 2000, to April 30, 2001), with two one-year extensions exercisable at KNTV’s option; the station exercised both options, extending the contract to April 30, 2003. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 997–998.) When he signed, KNTV was owned by Granite Broadcasting, Inc., and operated in the Salinas/Monterey market; Hicks took the job understanding he would anchor the 5:30 and 10:00 p.m. weeknight newscasts and was in line for the more coveted 6:00 and 11:00 p.m. spots when the incumbent left. (Id. at p. 998.) During his tenure the station became an NBC affiliate and began broadcasting in the San Jose/Oakland/San Francisco market — fifth in the nation in size. (Ibid.) NBC purchased KNTV on May 1, 2002, by which point Hicks was anchoring the 5:00 p.m. weeknight news, reporting for the 11:00 p.m. newscast, and hosting a lifestyle program; he had not succeeded to the 6:00 p.m. chair, which had gone to Allen Denton, another White man. (Ibid.)

NBC’s purchase brought a management overhaul. On July 15, 2002, KNTV hired James Sanders as vice-president of news, responsible for the editorial content and production value of all newscasts. (Hicks, supra, 160 Cal.App.4th at p. 998.) Sanders assessed all of the news anchors, retained most, reassigned some, and chose not to retain several — including Hicks. Sanders stated that Hicks’s performance abilities were “not consistent with KNTV’s expectations for a major network evening news anchor in the fifth-ranked market in the nation,” and that his on-air style was “aloof, distant, standoffish, unapproachable, stiff, and too anchor-like,” when what Sanders wanted was an anchor who projected a “warm, approachable, credible, welcoming” style. (Ibid.) Sanders testified at length that Hicks “came across on the air too much like a person trying to be an anchorman and not enough like a person bringing me the news.” (Id. at p. 998.) He had received viewer calls criticizing Hicks in consistent terms, maintained that he had raised his dissatisfaction with Hicks verbally on more than five occasions, never gave him a formal evaluation, and denied that race played any role. (Id. at p. 999.)

The personnel file contained partial corroboration. An October 2001 talent development recommendation advised Hicks to stay away from “the ‘Mr. Anchorman’ style delivery.” (Hicks, supra, 160 Cal.App.4th at p. 999.) The only formal review in the file — dated July 1, 2002, and signed by Sanders’s predecessor, Bob Goldberger — praised Hicks’s “easy, conversational anchoring style that makes him very watchable” and his “strong consumer stories,” called him “one of our best reporters,” but noted under “Improvement/Development Needs and Plans” that his “easy anchor style is a bit polarizing. Some viewers take it as being aloof.” (Ibid.)

In early April 2003 Sanders told Hicks he would not negotiate a new contract, though he let Hicks remain at the station until August to search for a new job. Hicks asked to stay on as a reporter; Sanders declined, explaining that in his experience moving a daily evening anchor to a reporter role “doesn’t work” — it would signal the station’s loss of confidence, dampen newsroom morale, and risk a disgruntled employee. (Hicks, supra, 160 Cal.App.4th at pp. 999–1000.) Hicks stopped working at KNTV on August 15, 2003. (Id. at p. 1000.) Sanders had identified no replacement candidates when he informed Hicks; he recruited principally by word of mouth, considered roughly 100 applicants, and ultimately hired T.J. Holmes — an African-American man referred by someone at NBC and the only applicant Sanders personally interviewed — on September 15, 2003. (Ibid.) Sanders’s broader personnel moves cut across racial lines: he declined to retain an Asian-American woman, a White woman, and an African-American man (whom he kept as a reporter); retained two White men, two Hispanic women, and an Asian-American woman; and hired, besides Holmes, a White woman, a Hispanic woman, an Asian-American man, and an African-American man. (Ibid.)

In opposition, Hicks showed he was objectively more experienced than Holmes — 13 years in journalism, eight as a regular weeknight anchor, Bay Area familiarity, and multiple awards, against Holmes’s four years and none of the rest. (Hicks, supra, 160 Cal.App.4th at p. 1000.) He flatly denied that Sanders ever counseled him — “Sanders had never said a word about it” — and noted his personnel file contained no document recording Sanders’s claimed dissatisfaction. (Id. at pp. 1000–1001.) Indeed, Sanders had encouraged his job search and personally recommended him to the general manager of a Fox affiliate in Honolulu, telling him “a guy was coming out of the station that [Sanders] thought was really talented,” describing Hicks as “a good reporter, a good storyteller” and a “pretty good investigative reporter” — while saying that he himself had “come in here with the marching orders to revamp.” (Id. at p. 1001.) Hicks also offered atmospheric evidence: industry pressure to hire minority anchors; his prior supervisor’s remark that the station had to “pin down this Hispanic thing”; news directors in Oakland and Tulsa who said KNTV had a “known diversity issue”; the fact that from January 1 to September 15, 2003, KNTV was the only major Bay Area station without an African-American anchor; and a station Web site that misidentified an African-American entertainment host as a news anchor. (Ibid.) A cryptic equal-opportunity document dated January 1, 2003, showed KNTV’s reporter ranks at 36.11 percent minority against 28.37 percent availability in the workforce. (Ibid.)

Procedural history

Hicks sued KNTV and NBC for racial discrimination under Government Code section 12940 and for wrongful termination under section 12940 and 42 United States Code section 1981; he abandoned an age claim below. (Hicks, supra, 160 Cal.App.4th at p. 997 & fn. 1.) Defendants moved for summary judgment on evidence that the new vice-president of news was dissatisfied with Hicks’s on-air performance; the trial court granted the motion. (Id. at p. 997.)

The trial court acknowledged this was not the traditional discrimination case in which the plaintiff belongs to a racial minority. It observed that although some federal courts require White plaintiffs to produce evidence of “background circumstances” showing the defendant “is that unusual employer who discriminates against the majority,” California law does not demand such a showing — and it found the prima facie question unnecessary to decide, because defendants had produced a legitimate, nondiscriminatory reason and Hicks’s evidence did not raise a reasonable inference of pretext. (Hicks, supra, 160 Cal.App.4th at p. 1002 & fn. 3 [collecting the federal circuit split].) Hicks appealed from the resulting judgment, and the Sixth District affirmed. (Id. at pp. 997, 1013.)

Issue

Where an employer supports summary judgment with evidence of a subjective, performance-based reason for declining to renew an anchor’s expired contract — his on-air style — what quantum and quality of evidence must the employee produce to create a triable issue that the reason was a pretext for racial discrimination? Embedded in that question were several recurring sub-issues: whether reliance on subjective criteria is itself suspect; whether a hiring “pattern,” small-sample statistics, or industry “pressure” to diversify can supply the inference of discriminatory motive; whether the absence of documentation of the employer’s dissatisfaction raises an inference of pretext; and whether evidence that the decisionmaker lied about one aspect of his account — counseling the plaintiff — is alone enough to reach a jury. (Hicks, supra, 160 Cal.App.4th at pp. 1003–1012.)

Holding

Reasoning

The framework: falsity alone does not prove pretext. The court set out the summary judgment architecture in employment discrimination cases. Summary judgment exists “to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Hicks, supra, 160 Cal.App.4th at pp. 1002–1003, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844.) The employer as moving party bears the initial burden to show either that an element of the prima facie case is lacking or that the adverse action rested on legitimate, nondiscriminatory factors — and under Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 357, it may proceed directly to its reasons without attacking the prima facie case. (Hicks, supra, at p. 1003.) The burden then shifts to the plaintiff to produce “substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Ibid., quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) Critically, “[t]he plaintiff must do more than raise the inference that the employer’s asserted reason is false. ‘[A] reason cannot be proved to be “a pretext for discrimination” unless it is shown both that the reason was false, and that discrimination was the real reason.’” (Ibid., quoting St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 515.) Review is de novo, construing the evidence liberally in the opponent’s favor. (Hicks, supra, at p. 1003, citing Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

A doctrinal footnote with teeth: this was a refusal to hire, not a termination. Before reaching the merits the court corrected the pleading’s framing. Hicks was not “terminated in the generally understood sense of that word”: his contract expired by its own terms, and his real grievance was the refusal to negotiate a new contract or employ him as a reporter — “a wrongful refusal to hire (or rehire).” (Hicks, supra, 160 Cal.App.4th at p. 1004, fn. 4.) The court noted the “analytical difference” between wrongful termination and refusal to hire, which affects both the elements of the prima facie case (citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802) and the running of the statute of limitations — though because neither mattered here, “the imprecision of plaintiff’s pleading does not affect our analysis.” (Ibid.)

Subjective criteria are permissible — and objective superiority to the replacement is beside the point. Hicks led with his superior résumé, but the court held his objective qualifications “not relevant” because the employer never invoked them: “The reason was plaintiff’s performance on the air. Plaintiff has not squarely challenged the legitimacy of this reason.” (Hicks, supra, 160 Cal.App.4th at p. 1005.) The court acknowledged that “subjective evaluations may lend themselves to discriminatory abuse and should, therefore, be closely scrutinized,” but held “there is nothing inherently suspect in the use of subjective criteria,” which “could be even more important in evaluating a television news anchor who represents the employer to the entire television audience.” (Ibid.) Absent some evidence that decisions were made on the basis of race, “the mere use of subjective criteria does not permit us to second-guess the employer’s business judgment” — courts do not sit as a “super-personnel department.” (Ibid., quoting Chapman v. AI Transport (11th Cir. 2000) 229 F.3d 1012, 1030.)

No pattern in a small sample. Tabulating Sanders’s personnel decisions over roughly two and a half years, the court found no discernible racial pattern: of eleven anchors, five were not retained — two White men, a White woman, an Asian-American woman, and an African-American man — and the new hires spanned every group. “These choices show no preference for any one group over another.” (Hicks, supra, 160 Cal.App.4th at pp. 1005–1006 & fn. 5.) To Hicks’s observation that every departing White anchor was replaced by a minority, the court answered that “[s]ince the number of affected employees was so small, we do not find the pattern to be significant” — the smaller the sample, the likelier an observed pattern reflects something other than discrimination — and that the urged inference would require assuming “that simply failing to replace White employees with other White employees is evidence of racial discrimination. This is an obviously faulty assumption.” (Id. at p. 1007, citing Pollis v. New School for Social Research (2d Cir. 1997) 132 F.3d 115, 121.)

“Pressure to diversify” requires proof of actual pressure on the decisionmaker. The court dismantled the atmospherics. The only evidence that KNTV ever used race or ethnicity as a hiring criterion — the “Hispanic anchor” comments — predated NBC’s purchase; General Electric’s affirmative-action policy and the FCC’s broad-outreach rule did not require race-based decisions; and “there is no evidence that KNTV was bound by any policy that required it to make hiring decisions based on race.” (Hicks, supra, 160 Cal.App.4th at p. 1007.) Whatever news directors elsewhere believed, “the evidence points in the other direction”: when Sanders began making changes KNTV already had more minority anchors than White male anchors, and the station’s own data showed minority representation above workforce availability. (Id. at pp. 1007–1008.) The Web site’s misidentification of an entertainment host as an anchor was “not rational” evidence of desperation to appear diverse. (Id. at p. 1008.) The missing recruitment paperwork proved nothing where there was no evidence of intentional withholding or destruction, and the theory that word-of-mouth recruiting let Sanders specify race was “speculative only.” (Id. at pp. 1008–1009.) The court closed the point with a structural observation: the only reason KNTV lacked an African-American anchor during 2003 was that Sanders himself had removed one from the weekend desk months earlier — which “[i]f anything . . . shows that he was not under any pressure to make sure KNTV had an African-American anchor.” (Id. at p. 1009.)

The record corroborated the employer’s reason rather than contradicting it. The court then turned to falsity and found the evidence ran the wrong way for the plaintiff: “most of the evidence on the point tends to corroborate Sanders’s determination that plaintiff’s on-air style was not optimal.” (Hicks, supra, 160 Cal.App.4th at p. 1009.) Hicks’s own prior supervisors had passed him over for the station’s marquee 6:00 p.m. chair; the 2001 talent coach had warned against the “Mr. Anchorman” delivery; Goldberger’s otherwise favorable review flagged the “polarizing,” “aloof” style; and Sanders had received viewer complaints in the same terms. “There is no evidence to the contrary.” (Id. at pp. 1009–1010.) Nor did the absence of documentation help: “the absence of documentation does not raise an inference of pretext” where nothing suggests evidence was concealed or destroyed, and it is “not so strikingly unusual that a single supervisor might not document his dissatisfaction with a single individual, particularly when the individual was working under a contract that was about to expire anyway” — distinguishing McGinest v. GTE Service Corp. (9th Cir. 2004) 360 F.3d 1103, 1123, where a company-wide hiring freeze left no paper trail at all. (Id. at p. 1010.) Any unfavorable inference was “neutralized by the fact that the file contains other evidence to support Sanders’s complaint about plaintiff’s performance.” (Ibid.) Even Sanders’s help with the job hunt cut against Hicks: Sanders recommended him to Honolulu as “a good reporter, a good storyteller,” saying “nothing about plaintiff’s performance as an anchor” — an omission that “implies that Sanders was not satisfied with those skills.” (Id. at pp. 1010–1011.)

Comparators must be genuinely comparable, and reasons must be met “head on.” Hicks argued disparate treatment because Linton Johnson, an African-American weekend anchor, was allowed to remain as a reporter while Hicks was not. The court applied the federal rule that a plaintiff “is not allowed to recast an employer’s proffered nondiscriminatory reasons or substitute his business judgment for that of the employer. Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” (Hicks, supra, 160 Cal.App.4th at p. 1011, quoting Chapman v. AI Transport, supra, 229 F.3d at p. 1030.) A weekend anchor’s demotion poses different credibility and morale risks than a weeknight anchor’s, and nothing showed the two situations were equivalent. (Ibid.)

The lie that could not carry the case. The court accepted, as it had to on summary judgment, Hicks’s testimony that Sanders never once counseled him — from which “the logical inference is that Sanders lied about counseling plaintiff.” (Hicks, supra, 160 Cal.App.4th at p. 1011.) But the further inference Hicks urged — that the real reason was a desire to make room for an African-American anchor — was “weak at best. In light of all the other evidence, it is not reasonable.” (Ibid.) Distinguishing Ryther v. KARE 11 (8th Cir. 1997) 108 F.3d 832, where the cumulative record included proof that the employer’s market research was unreliable, unreservedly favorable coaching assessments, and a glowing recommendation a year before the plaintiff was forced out, the court found “no evidence in this case to support a finding that Sanders’s dissatisfaction with plaintiff’s performance was pretextual. There is no evidence to conflict with Sanders’s opinion. Independent evidence in plaintiff’s personnel file actually supports it.” (Hicks, supra, at pp. 1011–1012.) The only arguably relevant item — the counseling dispute — “might support a finding that Sanders lied about his reason,” but “standing alone as it does, it cannot rationally support the ultimate inference required to reach a jury, which is that plaintiff was not retained because he was White.” (Id. at p. 1012.)

Significance

Hicks is one of the cleanest California articulations of the “pretext-plus-falsity” architecture that governs FEHA summary judgment after Guz: falsity evidence and discrimination evidence are distinct showings, and a plaintiff who proves only that the employer’s account has a hole in it has not yet proved that discrimination filled it. (Hicks, supra, 160 Cal.App.4th at pp. 1003, 1012.) The opinion is a defense staple in three recurring scenarios: subjective-criteria decisions (media, sales, client-facing and professional roles), small-workforce “pattern” arguments, and cases built on generalized diversity “pressure” rather than evidence about the actual decisionmaker. It also supplies the much-cited rule that an employer’s failure to document its dissatisfaction is not itself pretext evidence absent concealment or destruction. (Id. at p. 1010.)

Its limits are equally instructive, and they are the key to distinguishing it in practice. The court did not hold that a decisionmaker’s lie is irrelevant — it held this lie was alone, in a record that otherwise corroborated the employer. (Hicks, supra, 160 Cal.App.4th at p. 1012.) The opinion’s own treatment of Ryther maps the record that defeats summary judgment: independent evidence contradicting the employer’s assessment, contemporaneous favorable evaluations from the same decisionmakers, criticism of the replacement, and animus evidence in the workplace. (Id. at pp. 1011–1012.) Where a plaintiff’s file contains genuinely conflicting appraisals — rather than, as here, appraisals that “actually support[]” the stated reason (id. at p. 1012) — Hicks is readily distinguishable on its facts. The United States Supreme Court’s teaching that a prima facie case combined with disbelief of the employer’s explanation may in some circumstances permit a finding of discrimination (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133) underscores the same point from the other direction: everything depends on the strength of the falsity showing and what else the record contains. Finally, footnote 4’s recharacterization of a contract nonrenewal as a refusal to hire — with different prima facie elements and limitations consequences — remains an underappreciated trap for pleaders. (Hicks, supra, at p. 1004, fn. 4.)

Key quotes

“The plaintiff must do more than raise the inference that the employer’s asserted reason is false. ‘[A] reason cannot be proved to be “a pretext for discrimination” unless it is shown both that the reason was false, and that discrimination was the real reason.’” (Hicks, supra, 160 Cal.App.4th at p. 1003, quoting St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 515.)

“Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” (Hicks, supra, 160 Cal.App.4th at p. 1011, quoting Chapman v. AI Transport (11th Cir. 2000) 229 F.3d 1012, 1030.)

“While the evidence might support a finding that Sanders lied about his reason, standing alone as it does, it cannot rationally support the ultimate inference required to reach a jury, which is that plaintiff was not retained because he was White.” (Hicks, supra, 160 Cal.App.4th at p. 1012.)

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Practice pointer

Open questions

The court expressly left the prima facie architecture for majority-group plaintiffs unsettled: it noted the federal circuit split over requiring “background circumstances” from White plaintiffs and repeated the trial court’s observation that California does not impose that heightened showing, but — like the trial court — it found the question unnecessary to decide because the case was resolved at the pretext stage. (Hicks, supra, 160 Cal.App.4th at p. 1002 & fn. 3.) Footnote 4 likewise flags, without resolving, how recharacterizing a nonrenewal as a refusal to hire “can affect the running of the statute of limitations.” (Id. at p. 1004, fn. 4.) And the opinion does not decide how much corroboration converts a decisionmaker’s disputed credibility into a jury question — it holds only that a single disputed lie, in a record where “[i]ndependent evidence in plaintiff’s personnel file actually supports” the employer, is not enough (id. at p. 1012), leaving the line between this record and the Ryther record to case-by-case development.