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E.E.O.C. v. NATIONAL BROADCASTING CO.

December 7, 1990

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF, AND ENID ROTH, PLAINTIFF-INTERVENOR
v.
NATIONAL BROADCASTING COMPANY, INC., DEFENDANT.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

Plaintiff Equal Employment Opportunity Commission ("EEOC") and plaintiff-intervenor Enid Roth ("Roth") brought this action against the defendant National Broadcasting Company, Inc. ("NBC") alleging a violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. 2000e et seq. ("Title VII"), arising out of NBC's refusal to employ Roth as a staff director of television programs for NBC Sports. Upon a trial before the court and the submission of final argument and briefs the following findings and conclusions were reached, upon which judgment will be entered in favor of NBC and dismissing the complaint of Roth.

The Parties

EEOC is the agency charged with the enforcement of Title VII. After hearings and an investigation, it issued a right to sue letter to Roth on July 13, 1983.

Roth, a woman, was hired by NBC in 1952 as an executive secretary, became a production assistant, an associate producer, a producer, an associate director and a director in the News division.

NBC, a Delaware corporation, operates a television network, local television stations and presents performances and events on television.

Prior Proceedings

In 1975, a group of female employees commenced a class action against NBC, Women's Committee for Equal Employment Opportunity (WC=EO) v. NBC, 71 F.R.D. 666 (S.D.N.Y. 1976). The class was certified to include, inter alia, "all women who were employees of [NBC] on or after February 8, 1972" and EEOC was permitted to intervene as a plaintiff. WC=EO v. NBC, 71 F.R.D. 666, 668 (S.D.N.Y. 1976). Although Roth was not a named class representative, she was a member of the class under its definition. On August 31, 1977 the parties entered into a Consent Decree which, among other things, resolved in full all claims against NBC by members of the plaintiff class for sex-based discrimination in violation of Title VII up to and including March 28, 1977.

The Decree established "utilization goals," percentage goals for the utilization of women, to be achieved by NBC by the end of 1981. These goals covered various salary grade positions and the job category of associate director. In the salary grade ranges, the overall utilization goals were combined with subgoals, covering certain functional areas or divisions of the overall categories. For example, for Grades 22-24, the Decree specified

  Ultimate overall utilization goal of 27%, with the
  provision that there be a minimum utilization goal of
  25% in the News Division, 20% in the Finance
  Division, and 15% in the TV Network Division.

With respect to the associate director position, the overall utilization goal of 30% was not joined with any kind of sub-goal for functional areas or divisions.

The Decree also required NBC to request all women employees to complete or update certain forms describing their experience and career interests and objectives, and to consult these forms (or a catalogue based thereon) when filling certain job vacancies.

On May 13, 1980 following certain of the events set forth below, the Directors Guild of America ("DGA") filed a charge of discrimination with the EEOC against NBC, alleging that NBC had discriminated against Roth because of her sex by refusing to hire her to direct television sports programs. The DGA subsequently amended the charge to include NBC's failure to offer another woman an Associate Director position in Sports.

The EEOC investigated the charge, and on July 13, 1983 issued its determination that there was "reasonable cause" to believe that the NBC sports department ("Sports") had discriminated against Roth in particular and females as a class based on their sex in filling Sports Director positions. In part, the determination stated:

  In summary, Respondent has asserted that it has not
  employed Enid Roth as a Sports Director because she
  lacks the required experience, knowledge and
  training. However, it is clear that Respondent has
  also denied her the opportunity to be trained in
  sports programming. Also the employment histories of
  four of Respondent's six male Sports Directors does
  not reflect the overwhelming amount of knowledge,
  experience and training which Respondent asserts is
  required. Enid Roth, with her vast amount of
  directorial experience is arguably as qualified, if
  not more so, than several of the male Directors who
  were hired.

With respect to the portion of the charge relating to Associate Directors in Sports, the EEOC determined that there was not sufficient cause to believe the DGA's allegation of discrimination based on sex.

After the reasonable cause determination was issued, NBC requested reconsideration, claiming again the Consent Decree as a jurisdictional bar, and again asserting that the process by which one becomes a Sports Director at NBC was a "pipeline" process: "talented personnel are exposed to increasingly more responsible sports assignments before being made sports director." The EEOC declined this request.

Thereafter, in 1986, this action was commenced by the EEOC, and in 1987 Roth was granted permission to intervene. Discovery proceeded, and upon the elevation of the Honorable John M. Walker to the Court of Appeals the action was reassigned. An order was entered defining the scope of the EEOC proceeding and permitting proof at trial relating to the alleged denial by NBC of training assignments and freelance opportunities for Roth. Evidence of pre-1977 events — events covered by the Consent Decree — was deemed admissible to enable plaintiffs to establish NBC's intent.

The action was tried by the court from April 16 through April 23 and on May 2, 1990, and after a full briefing by the parties' final argument was heard on August 2, 1990.

THE FACTS

Based upon the undisputed facts set forth in the Pretrial Order and upon the testimony and exhibits offered at trial, the following facts are found to have been established by a preponderance of the evidence.

The Categories of Employment at Issue

The Staff Sports Director of a television sports program ("the Sports Director") is responsible for the image of the sports event which is broadcast by the television station. The Sports Director accomplishes this task by determining which picture to select from those transmitted by the various cameras to the control truck in the course of the event, which is presumably spontaneous and unscripted. In this respect, a sports event is unlike a live news event such as a political convention. Viewers of a sports broadcast expect "standard" shots and angles for standard plays and can be intolerant of deviations or lapses, even in the face of unpredictable occurrences. For a live news event, however, there are few if any "standards" to which the director must adhere, and viewers must accept more variation between different events and different directors. The selection of the pictures to be transmitted thus requires a knowledge both of the technical capacity of the equipment involved and of the likely course of action of the event. The Director must anticipate the action and direct the cameras and the truck personnel in order to be ready to present the appropriate shots. A Sports Director must possess skill, judgment, creativity and leadership.

The Sports Director is under contract with NBC and is the highest paid of all types of directors, receiving about twice the salary of those who direct news programs, which are generally somewhat less spontaneous and more scripted than sports events. In 1982, for example, the average news director made 30% of the salary of a Sports Director, reflecting both the increased skill required to direct sports programs and the fact that sports programs are the most profitable programs aired by NBC. During the period at issue in this action NBC produced approximately 400 sports events. No woman was ever hired as a Sports Director.

An Associate Director performs those tasks assigned by the Sports Director, frequently being responsible for the handling of commercials, station breaks and the like. The Associate Director performs these tasks in the control truck. By 1980, 14% of the Associate Directors in Sports were women. As of January 1980, three of the eight Associate Directors hired for the 1980 Moscow Olympics were women.

A freelance director performs the same duties as a Sports Director but does not have a long term contract, nor is the freelance director an employee of NBC Sports, but rather an independent contractor. A freelance director is sometimes hired for out of town assignments with a local or regional interest. Between 1979 and 1982 no women were hired by NBC as freelance directors.

Roth was the only woman who ever sought the position of Sports Director at NBC Sports during the period in question. In 1982 or 1983, Mary Buta, an Associate Director in Sports who was frequently upgraded temporarily to Sports Director, asked to direct a football game. The request was made in the middle of the football season, and her supervisor responded that the schedule would not allow such assignment until the following year. Although Buta worked on live events as an Associate Director, she had not thereafter asked for an opportunity to direct live events.

The Hiring Practices of NBC for the Post of Director

Since 1979, NBC advertised open positions of Sports Director by means of postings on bulletin boards indicating that interested applicants could apply by submitting written applications. During the relevant period there were fewer than ten Directors employed. None were women.

From 1979 to 1985 there were in the number of 200 freelance directing opportunities which were reported to the DGA. Several dozen different freelance directors were hired during the relevant period.

The Roth-NBC Relationship Prior to the Final Refusal to Hire Her as Sports Director

Roth joined NBC in 1952 as an executive secretary, gradually moving up to become a production assistant, an associate producer, a producer, and an associate director. She worked as a control room associate director for Sports during the period 1955-57. On occasion while she was on staff as associate director she was upgraded to perform director functions for programs other than sports. For example, she was upgraded for coverage of the primaries and conventions in 1964, Lucy Baines Johnson's wedding, and the conventions in 1968. Directing such programs required technical knowledge but no knowledge of sports or the degree of camera control and direction required in sports.

In 1976 Roth became a director on staff at WNBC-TV. She directed the news in virtually all of the time slots. In 1976, Roth directed NBC's national election coverage, including the primaries, the conventions, and election night. In publicizing Roth's abilities, and NBC's use of women for its election coverage, NBC announced:

  What makes one network's coverage of an election year
  better than any other? (NBC News' has been tops in
  critical acclaim and in the ratings). Part of the
  difference is Roth. The only woman currently directing
  network coverage of Election Year `76, Roth's
  responsibilities through Election Night are to oversee
  the content and concept of NBC News' special
  coverage.

Throughout her years as a director on staff at NBC in the news division, Roth also accepted freelance assignments, including many for the position of associate director, utilizing vacation time or requesting leaves of absence from NBC to enable her to do so. One of those freelance associate director assignments involved a sporting event — a college basketball game broadcast on cable television sometime between 1968 and 1970. In 1973 Roth rejected an offer to become a Sports Director at HBO in part, at least, because of the possibility of risking her DGA status.*fn1

Roth was chosen to work on the Tony Awards as the only associate director for that show for each year from 1971 through 1987. In addition, Roth worked as an associate director in 1983 and 1984 for many shows, including "Night of 100 Stars," "Parade of Stars," "Night of 100 Stars II," and "Sinatra, The Man and His Music." Roth received awards and nominations for awards for her work as associate director and director.

In or around 1970 Roth went with Ernie Ricca ("Ricca"), who was then Eastern Executive Secretary of the DGA to meet with Richard Goldstein ("Goldstein") of NBC's Labor Relations Department. At that meeting the fact that there were no women in Sports at NBC was discussed. Goldstein, although saying that he had been unaware of the situation, conceded that it would be inappropriate for NBC to have no women in Sports. Goldstein asked for time to look into the situation and when Roth and Ricca returned to him some time after the meeting, he again asked for more time. After making repeated attempts to discuss the situation further with Goldstein, Roth was given an Associate Director assignment on a baseball game in 1973. Roth was told by the producer of the game that he was very pleased with her performance, and she asked when she would get another chance. She was given no further assignments in Sports even though she was told she had done "a fine job." Roth then made an appointment to see Carl Lindeman ("Lindeman"), at that time the head of NBC Sports, but Lindeman's employment was terminated prior to the time of Roth's appointment with him.

Roth also spoke to Ted Nathanson ("Nathanson"), a Director and coordinating producer of football, about her interest in getting a job in Sports. Nathanson suggested that Roth observe a game while he directed, and she offered to accompany him on her own time and at her own expense. According to Nathanson it was unusual for someone to be willing to pay her own way. However, Roth was not permitted to go with Nathanson to observe a game. NBC later told the EEOC that permitting Roth to observe would have been impractical, a potential violation of law, and inconsistent with the manner in which other sports directors received their training.*fn2

In late 1976 NBC had acquired the rights to broadcast the 1980 Olympic Games in Moscow, and in 1977 Donald Ohlmeyer ("Ohlmeyer") was hired specifically for the position of Executive Producer of those Olympics. Ohlmeyer had worked for ABC as a production assistant, associate director, and Director, ultimately became the producer of ABC's major sports telecasts — including Monday Night Football, major league baseball, and Wide World of Sports. In addition, Ohlmeyer had worked in one capacity or another on ABC's coverage of five different Olympic Games.

In 1978 Roth attempted to meet with Ohlmeyer, but her repeated efforts failed. She put together a photographic presentation for him with the request that he meet with her. Although Roth was told that Ohlmeyer found her presentation terrific, and that no one else had ever gone through such hoops to see him, she still could not get an appointment to be interviewed by him, even though at this time, early in Ohlmeyer's tenure at NBC, he was hiring a number of new people for Sports. Roth ultimately waited on a staircase leading to Ohlmeyer's office in order to get him to interview her. Roth informed Ohlmeyer that she sought a job as a Sports Director, and suggested that she do a tape for him so that he could review her work. In their brief interview, Ohlmeyer did not request such a tape. There was some discussion of sports and of her background. With respect to an associate director's position, Roth gave Ohlmeyer the impression that she would consider such a post a demotion. Ohlmeyer declined to hire Roth as a Sports Director and did not get back to Roth at any time after he met with her, although she understood that he had undertaken to do so.

Roth spoke with Arnie Reif ("Reif"), who had a management position with NBC Sports, about the possibility of working as an associate director in Sports and then with Glen Gumpel ("Gumpel"), the Western Executive Secretary of the DGA.

In late 1978 Gumpel met with Eugene McGuire ("McGuire"), who was then in charge of labor relations for NBC, in order to discuss Roth's prospects for employment in the Sports Department. Gumpel understood that, at that time, there were opportunities for directors and associate directors because of the hiring being done for the summer Olympics.

Gumpel discussed with McGuire the fact that women were not given opportunities at NBC Sports, and he informed McGuire that it was a good time to rectify that wrong. Gumpel was told that McGuire could not do anything for Roth and that the best he could do was to have Roth send her resume to someone who was responsible for looking at resumes for NBC with regard to the 1980 Olympics. Gumpel was given no further reason for NBC's refusal to give Roth an opportunity for an interview. Roth had on a number of occasions spoken with various NBC personnel about a job in Sports, and DGA representatives also made an additional number of similar requests.

After a series of letters between Gumpel and NBC, Gumpel advised Roth that the most appropriate action was for her to file a charge of discrimination with EEOC; as a result, the Charge of Discrimination referred to above was filed on May 13, 1980 claiming ...


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