William Schecher, et al v. KPIX-TV, et al

Filing

FILED OPINION (BETTY BINNS FLETCHER, JOHN T. NOONAN and RICHARD A. PAEZ) AFFIRMED. Judge: BBF Authoring, FILED AND ENTERED JUDGMENT. [8193238]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM SCHECHNER and JOHN
LOBERTINI,
Plaintiffs-Appellants,
v.
KPIX-TV and CBS BROADCASTING
INC.,
Defendants-Appellees.




No. 11-15294
D.C. No.
3:08-cv-05049-MHP
OPINION



Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted
February 14, 2012—San Francisco, California
Filed May 29, 2012
Before: Betty B. Fletcher, John T. Noonan, and
Richard A. Paez, Circuit Judges.
Opinion by Judge B. Fletcher

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SCHECHNER v. KPIX-TV

COUNSEL
Carolyn Salmon (argued) and John A. McGuinn, McGuinn
Hillsman & Palefsky, San Francisco, California, for the
plaintiffs-appellants.
Maureen E. McClain (argued), John J. Cliffe, and Matthew P.
Vandall, Littler Mendelson, San Francisco, California, for the
defendants-appellees.

OPINION
B. FLETCHER, Circuit Judge:
Plaintiffs William Schechner and John Lobertini were television news reporters at KPIX-TV, one of the two San Francisco affiliates of CBS Broadcasting, Inc.1 They were laid off

1

We will refer to KPIX-TV and CBS collectively as “KPIX.” KPIX-TV
is wholly owned by CBS Broadcasting, Inc. and has no separate legal existence.

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after CBS issued a directive requiring each of its affiliates to
reduce its annual budget by ten percent. Schechner and Lobertini were sixty-six and forty-seven years old, respectively,
when they lost their jobs. They brought suit alleging that
KPIX discriminated against them on the basis of age and gender, in violation of California law. The district court granted
KPIX’s motion for summary judgment, dismissing all of
Plaintiffs’ claims. We affirm. We write to clarify that a plaintiff can make out a prima facie case of disparate-treatment age
discrimination using statistical evidence, even where that evidence does not account for the defendant’s legitimate nondiscriminatory reason for the discharge.
I.

BACKGROUND

This case demonstrates that reduced advertising revenues,
whether caused by competition from online news outlets or
our nation’s economic downturn, have taken a significant toll
on local television news stations. Schechner and Lobertini
were performing their jobs well when KPIX laid them off.
Both are experienced reporters with distinguished careers that
include numerous awards. KPIX does not allege that performance issues played any role in the decision to lay off either
Schechner or Lobertini.
In March 2008, KPIX was faced with the difficult task of
reducing its annual budget by ten percent before the end of its
first fiscal quarter. Although the budget reduction mandate
came from CBS’s headquarters in New York, the senior management at local stations decided how to implement the
required cuts. Ronald Longinotti, the President and General
Manager of KPIX-TV and Dan Rosenheim, the VicePresident and New Director at KPIX-TV were responsible for
implementing the required cuts at KPIX-TV.
Longinotti and Rosenheim were responsible for hiring and
firing decisions in the KPIX news department in March 2008.
They had signed Schechner to a new two-year contract in

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2004, when Schechner was sixty-two years old, and to new
one-year contracts in 2007 and 2008, when he was sixty-five
and sixty-six years old, respectively. Similarly, Longinotti and
Rosenheim had signed Lobertini to a new two-year contract
in October 2006, when Lobertini was forty-six years old. It is
undisputed that KPIX was under no obligation to sign
Schechner or Lobertini to these contracts when it did so.
Longinotti and Rosenheim also made the decision to lay off
Schechner, Lobertini and three other members of the KPIX
“on-air” news team2 as part of a reduction in force necessitated by the CBS-mandated budget cut. The other three on-air
employees that KPIX laid off were fifty-seven-year-old Tony
Russomanno, fifty-six-year-old Manny Ramos, and fifty-oneyear-old Rick Quan.3
KPIX offered legitimate non-discriminatory reasons for its
layoff decisions. Longinotti and Rosenheim testified that they
first decided that news anchors would not be subject to layoff
because they are the “face” of KPIX and Longinotti and
Rosenheim wanted the reductions to be as invisible as possible to the viewing public. Then, they decided that they would
lay off general assignment reporters based on next date of
contract expiration. Rosenheim testified that they excluded
“specialty reporters,” meaning those focusing on a specific
beat, because “they were the people that we were promoting
and pushing the brand of the station.” Schechner and Lobertini dispute whether KPIX followed the decision-making
model that Longinotti and Rosenheim described.
Schechner and Lobertini submitted reports by expert statistician William Lepowsky. Lepowsky’s reports compared the
on-air talent who were laid off with the entire pool of on-air
talent in the KPIX-TV news department. He concluded that
2

“On-air” talent are the individuals who appear on KPIX’s television
news broadcasts.
3
Russomano, Ramos, and Quan are not parties, but their inclusion in the
reduction in force is relevant to Plaintiffs’ claims.

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“those individuals laid off, as a group, are older than the
group of those not laid off, and the disparity between the two
groups is statistically significant.” Lepowsky found statistically significant age disparities using three different statistical
methods and using a number of different groups of KPIXTV’s on-air talent. Based on his statistical analyses,
Lepowsky opined that the age of KPIX’s on-air talent “correlates closely” with those selected for layoff. He acknowledged
that his analyses assumed that all on-air talent had an equal
probability of being laid off (i.e., he did not exclude anchors
from the pool of talent subject to lay off) and did not account
for contract expiration date. KPIX’s statistical expert, Dr.
Bernard Siskin, opined that Lepowsky’s report failed to
account for obvious, valid and important factors because it
failed to account for the decision-making process that KPIX
said it followed.
The district court granted KPIX’s motion for summary
judgment on Plaintiffs’ disparate treatment claim. The district
court found that Schechner and Lobertini failed to make out
a prima facie case of age discrimination. Specifically, the district court concluded that where a plaintiff’s statistical analysis fails to preemptively account for a defendant’s legitimate
non-discriminatory reason for discharge, the statistical results
cannot show a stark pattern of discrimination. We disagree
and write to clarify that a plaintiff who relies on statistical
evidence to establish a prima facie case of disparate treatment
bears a relatively low burden of proof. Nonetheless, we affirm
because Plaintiffs have not carried their burden at step three
of the McDonnell Douglas analysis.
II.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 28 U.S.C. §§ 1332
and 1441(a). We have jurisdiction under 28 U.S.C. § 1291.
Plaintiffs did not appeal the district court’s grant of summary
judgment on their disparate impact age discrimination claim

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or their gender discrimination claim. We therefore do not
address these claims.
We review de novo the district court’s grant of summary
judgment. Earl v. Nielsen Media Research, Inc., 658 F.3d
1108, 1112 (9th Cir. 2011). The court determines, viewing the
evidence in the light most favorable to the non-moving party,
whether there are any genuine issues of material fact, and
whether the district court correctly applied the relevant substantive law. Id. “As a general matter, the plaintiff in an
employment discrimination action need produce very little
evidence in order to overcome an employer’s motion for summary judgment.” Diaz v. Eagle Produce Ltd. P’ship., 521
F.3d 1201, 1207 (9th Cir. 2008) (quoting Chuang v. Univ. of
Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000)).
“The requisite degree of proof necessary to establish a prima
facie case . . . on summary judgment is minimal and does not
even need to rise to the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.
1994).
Because the district court concluded that Plaintiffs failed to
establish one of the elements of a prima facie case, it did not
complete the remainder of the McDonnell Douglas analysis
with respect to their disparate treatment claims. See Diaz, 521
F.3d at 1208. We may affirm the district court on any grounds
supported by the record. See Townsend v. Univ. of Alaska,
543 F.3d 478, 485 (9th Cir. 2008).
III.

DISCUSSION

Schechner and Lobertini allege that KPIX discriminated
against them on the basis of age, in violation of the California
Fair Employment and Housing Act (FEHA), when the station
laid them off as part of its reduction in force. See Cal. Gov’t
Code § 12940(a). California applies the McDonnell Douglas4
4

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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burden-shifting framework and other federal employment law
principles when interpreting the FEHA. See Guz v. Bechtel
Nat’l, Inc., 8 P.3d 1089, 1113 (Cal. 2000); Earl, 658 F.3d at
1112.
The district court held that Schechner and Lobertini failed
to make a prima facie case of age discrimination under the
familiar McDonnell Douglas burden shifting framework.5
Specifically, the district court concluded that under Ninth Circuit law, when a plaintiff relies on statistical evidence as the
primary support for his prima facie case of age discrimination
“the three-step McDonnell Douglas analysis collapses into a
single step.” The district court added that “where a plaintiff’s
statistical analysis fails to preemptively account for a defendant’s legitimate, non-discriminatory reason for discharge, the
statistical results cannot show a stark pattern of discrimination
unexplainable on grounds other than age.” We clarify that a
plaintiff’s statistical evidence need not necessarily account for
an employer’s proffered non-discriminatory reason for the
adverse employment action to make a prima facie case of discrimination.
[1] The employee in an age discrimination case makes a
prima facie case of disparate treatment “by demonstrating that
he was (1) at least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications
or discharged under circumstances otherwise ‘giving rise to
an inference of discrimination.’ ” Diaz, 521 F.3d at 1207
(quoting Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281
(9th Cir. 2000)). An inference of discrimination can be estab5

The employee must first establish a prima facie case of age discrimination. Diaz, 521 F.3d at 1207. If the employee does so, “the burden shifts
to the employer to articulate a legitimate, non-discriminatory reason for its
adverse employment action.” Id. “If the employer satisfies its burden, the
employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination.” Id.

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lished by “showing that others not in [plaintiff’s] protected
class were treated more favorably.” Id. A plaintiff laid off
during a reduction in force will generally have to rely on evidence giving rise to an inference of discrimination—often statistical evidence—because the plaintiff is unlikely to have
been replaced. See id. at 1207 n.2; see also Coleman, 232
F.3d at 1281.
[2] There is no dispute that Schechner and Lobertini satisfied the first three elements of their prima facie case. The key
issue before us is whether Lepowsky’s statistical analyses
necessarily fail to satisfy the fourth element because they do
not account for variables related to KPIX’s proffered nondiscriminatory reasons for discharging Schechner and Lobertini. As the district court recognized, the rule it applied would
“permit[ ] savvy employers to eliminate older employees from
the workplace during a reduction-in-force without any consequences, the exact harm the FEHA was enacted to prevent.”
A.
[3] We begin by reviewing a number of our precedents in
age discrimination cases. We have explained that when a
plaintiff seeks to establish a prima facie case of disparate
treatment based solely on statistics, these statistics must show
a “stark pattern of discrimination unexplainable on grounds
other than age.” Palmer v. United States, 794 F.2d 534, 539
(9th Cir. 1986) (internal quotation marks omitted) (quoting
Gay v. Waiters’ & Diary Lunchmen’s Union, 694 F.2d 531,
552 (9th Cir. 1982)). In Rose v. Wells Fargo & Co., we found
that two high-level managers who were laid off after a merger
failed to satisfy this standard. 902 F.2d 1417, 1423 (9th Cir.
1990). The Rose plaintiffs submitted statistical evidence
showing that employees over the age of fifty were far more
likely to lose their jobs in the layoffs than younger employees.
Id. We found that these disparities could be explained by the
fact that older employees tended to occupy the key management positions, which were eliminated after the merger in

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order to avoid duplication. Id. Palmer and Rose instruct that
in many cases, statistical evidence will need to address variables other than age in order to give rise to an inference of
discrimination sufficient to make a plaintiff’s prima facie
case.
[4] In our more recent decisions we have questioned the
strength of statistical evidence offered by plaintiffs to make a
prima facie case, but have nonetheless resolved the cases at
step three of the McDonnell Douglas framework. See Diaz,
521 F.3d at 1209, 1214; Coleman, 232 F.3d at 1282-83.
Diaz involved claims by farm workers who were at least
fifty-five years old when they lost their jobs. 521 F.3d at
1205-06. The Diaz plaintiffs submitted statistical evidence
showing that the average age of the employees laid off, 48.4
years, was higher than the average age of employees retained,
38.75 years. Id. at 1208-09. We raised concerns about the statistics because (1) many of the farm’s employees, including
plaintiffs, were already over age 50 when they were hired; (2)
the disparity in the average ages of employees laid off compared with employees retained was not “so stark as to suggest
bias rather than pure chance”; and (3) the two data sets (16
workers in the laid-off group and sixteen in the retained
group) were “too small to form a reliable basis for analysis.”
Id. at 1209. There was also evidence, however, that the supervisor who laid off the plaintiffs (and who took over after
plaintiffs were hired) exhibited a preference for younger
workers, in some cases even when those workers were less
experienced than employees laid off. Id. at 1209-11. The disparities in the ages of employees laid off compared with those
retained increased after he took over. Id. at 1210.
We suggested that the Diaz plaintiffs’ statistics standing
alone would be insufficient to make a prima facie case. Id. at
1208-09. But we concluded that the plaintiffs had established
their prima facie case based on the statistics along with plaintiffs’ other circumstantial evidence of discrimination. Id. at

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1209-11. We did not say that statistical evidence must account
for variables associated with the employer’s neutral reason for
laying off a plaintiff. Id. at 1208-10.
We similarly questioned the strength of the plaintiffs’ statistical evidence in Coleman, but resolved the case at step
three of the McDonnell Douglas framework. 232 F.3d at
1281-82. The plaintiffs in Coleman were three employees
aged fifty-five, fifty-three, and forty-nine, who were laid off
along with hundreds of other Quaker Oats employees nationwide. Id. at 1277, 1279-80. Two of the Coleman plaintiffs
submitted statistical evidence showing that older employees
lost their jobs at twice the rate of younger workers. Id. at
1281. We characterized the statistical evidence as “problematic” because it did not account for any variables other than age.
Id. at 1281. We explained that when variables such as education and job category were considered, the statistical disparities were far less dramatic or not statistically significant. Id.
Nonetheless, “despite the weakness in the evidence offered by
[plaintiffs] to establish their prima facie cases, given the low
threshold required, we assume[d], without deciding, that . . .
[plaintiffs] have established such a case.” Id. at 1282. We
affirmed the district court’s summary adjudication based on
the plaintiffs’ failure to present evidence that Quaker Oats’
non-discriminatory explanation for the layoffs was pretextual.
Id. at 1283.
[5] Our resolution of the Diaz and Coleman cases at step
three of the McDonnell Douglas framework is consistent with
our admonition that “[t]he requisite degree of proof necessary
to establish a prima facie case. . . on summary judgment is
minimal and does not even rise to the level of a preponderance of the evidence.” Wallis, 26 F.3d at 889. Consistent with
our precedents, we conclude that a plaintiff who submits statistical evidence that shows a stark pattern of age discrimination establishes a prima facie at step one of the McDonnell
Douglas framework. We hold that statistical evidence does
not necessarily fail to establish a prima facie case because it

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does not address the employer’s proffered non-discriminatory
reasons for the discharge. We do not hold that any statistical
evidence of disparate treatment, regardless of its strength, will
be sufficient to establish a prima facie case.
[6] Here, Schechner and Lobertini submitted analyses
showing stark age disparities between the on-air talent who
were retained and those who were laid off. This evidence was
sufficient to carry their minimal burden at step one of the
McDonnell Douglas framework.
B.
[7] KPIX met its burden at step two by offering a legitimate, non-discriminatory reason for its layoffs: that it laid off
general assignment reporters based on date of contract expiration. We now turn to whether Schechner and Lobertini have
shown that this was mere pretext for age discrimination. We
conclude that they have not.
Schechner and Lobertini argue that KPIX did not actually
follow the process Longinotti and Rosenheim described to
make layoff decisions. They make the following claims: (1)
Joe Vazquez and Simon Perez, two general assignment
reporters who were retained, had contract expiration dates
earlier than the contract expiration dates of the employees laid
off; (2) anchors were not in fact exempt from the layoffs
because sports anchor Rick Quan was laid off and another
anchor was part of the reduction in force; (3) two of the
reporters who were laid off were “specialty reporters,” not
general assignment reporters. We address these arguments in
turn.
[8] The record does not support Plaintiffs’ assertion that
Vazquez and Perez had earlier contract expiration dates than
the terminated employees. Perez and Vazquez did not have
signed written contracts when the CBS mandate came down,
but Rosenheim testified that they did have enforceable oral

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agreements in place. Internal CBS documents support Rosenheim’s testimony and the documents Plaintiffs point to do not
refute his assertion. There is no genuine issue of material fact
or inference of pretext to be drawn from KPIX’s retention of
Vazquez and Perez.
[9] There is no genuine issue of material fact as to whether
a sixty-one-year-old anchor took voluntary termination.
Longinotti acknowledges that he asked the anchor to consider
this option, but that acknowledgment does not make the
anchor’s termination non-voluntary. Plaintiffs point to a KPIX
budget document, which includes the anchor’s name in a line
item for “five terminated talent.” The anchor’s inclusion on
this list does not mean that the anchor’s termination was not
voluntary. There is no declaration or testimony from the
anchor, or other evidence in the record, regarding why the
anchor took voluntary termination. We therefore conclude
that the anchor’s voluntary departure from KPIX does not
support an inference of discrimination.
[10] Rick Quan’s termination presents a closer question,
but we conclude that it does not support the conclusion that
KPIX’s proffered explanation for the layoffs was pretext.
Rosenheim asserted that Quan was terminated “for very specific reasons having to do with the cost of the sports department and the role of sports in our news.” Plaintiffs did not
develop Rosenheim’s testimony with regard to those “specific
reasons.” Quan’s declaration contains no information tending
either to support or refute Rosenheim’s testimony. While it is
true that Quan was an anchor and that his inclusion in the
reduction in force tends to undermine KPIX’s claim that
anchors were not eligible for layoff, KPIX has consistently
asserted that it made a separate business decision regarding
the role of sports in its broadcasts and Plaintiffs point to no
evidence to refute that assertion.
We conclude that there is a factual dispute as to whether
Russomano and Lobertini were specialty reporters who

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should have been exempted from layoff under the system
described by Rosenheim and Longinotti. Rosenheim testified
that KPIX’s specialty “political reporter” is Hank Plant and its
“environmental reporter” is Jeffrey Schaub. But Plaintiffs
presented evidence that Lobertini was a political reporter and
that Tony Russomanno was an environmental reporter.
[11] We conclude, however, that even viewing the disputed facts in the light most favorable to Schechner and
Lobertini, they do not support a finding of pretext. This is true
largely because KPIX is entitled to a favorable “same-actor
inference.”
“[W]here the same actor is responsible for both the hiring
and the firing of a discrimination plaintiff, and both actions
occur within a short period of time, a strong inference arises
that there was no discriminatory motive.” Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996).
The same-actor inference is “a ‘strong inference’ that a court
must take into account on a summary judgment motion.”
Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1098 (9th Cir.
2005) (quoting Bradley, 104 F.3d at 271). The inference
applies to favorable employment actions other than hiring,
such as promotion. Id. at 1097. It also may arise when the
favorable action and termination are as much as a few years
apart. Id.
Schechner acknowledged in his deposition that Rosenheim
accommodated Schechner’s request to change from full-time
to part-time employment in 2006, despite Rosenheim’s
expressed preference that Schechner remain full time. Schechner was then sixty-four years old. Schechner also acknowledged that Rosenheim and Longinotti signed him to a twoyear contract in 2004, when he was sixty-two years old, and
one-year contracts in 2007 and 2008, when he was sixty-five
and sixty-six respectively. Rosenheim and Longinotti signed
Schechner to his last contract just months before he was laid
off. Similarly, Rosenheim and Longinotti signed Lobertini to

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new contracts when he was over forty years old. This includes
his final two-year contract, which Longinotti signed when
Lobertini was forty-six, less than two years before Lobertini
was laid off. Plaintiffs acknowledge that the station was under
no obligation to offer them new contracts when it did so.
[12] KPIX is entitled to a favorable same-actor inference
because Longinotti and Rosenheim signed Schechner and
Lobertini to new contracts not long before they laid off
Schechner and Lobertini. In light of the same-actor inference,
we conclude that Schechner and Lobertini failed to present
sufficient evidence of pretext to survive summary judgment at
step three of the McDonnell Douglas framework.
IV.

CONCLUSION

The McDonnell Douglas three-step burden-shifting framework does not collapse into a single step when plaintiffs rely
on statistical evidence to make a prima facie case of disparate
treatment age discrimination. We hold that a plaintiff’s statistical evidence need not account for the employer’s nondiscriminatory reason for the discharge in order to show a
stark pattern of discrimination. Although Schechner and
Lobertini established a prima facie case of discrimination,
they did not present sufficient evidence of pretext to survive
summary judgment.
AFFIRMED.