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Kaplan v. Multimedia Entertainment

March 5, 2008


The opinion of the court was delivered by: John T. Curtin United States District Judge


Plaintiff originally brought suit against the defendants alleging, inter alia, employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Civil case number 02-CV-447). This court granted the defendants' motion for summary judgment, dismissing the action in its entirety, and the court's decision was affirmed by the Second Circuit. See Kaplan v. Multimedia Entertainment, Inc., 2005 WL 2837561 (W.D.N.Y. October 27, 2005), aff'd, 199 Fed. Appx. 54 (2d Cir. 2006). In this action, plaintiff complains that certain actions taken by defendants following the filing of her original lawsuit were taken in retaliation for her protected activity in violation of Title VII. Defendants have now moved for summary judgment dismissing the retaliation action.


Plaintiff began her employment at WGRZ-TV in 1990. Between 1991 and 2002, she was assigned to the positions of reporter and co-anchor of the 5 p.m. newscast. In April 2002, plaintiff was removed from the co-anchor position and was reassigned as a reporter. In June 2002, she commenced her first lawsuit alleging race, sex, and age discrimination. In August 2003, plaintiff's contract expired, yet she continued to work at WGRZ-TV on a non-contract basis. In October 2003, while her discrimination lawsuit was still pending, plaintiff filed this lawsuit in New York State Supreme Court, Erie County, alleging retaliation. The action was removed to this court on October 30, 2003 (Item 1).

In her complaint, plaintiff alleges that defendants retaliated against her by refusing to release her from a "non-compete clause" in her contract, converting her from "contract" to "non-contract" status, placing her on probationary status, subjecting her to an annual performance review, failing to award her a pay raise, keeping her "out of the loop," and attempting to cause her to quit her employment. On March 26, 2004, plaintiff's employment was terminated when defendants learned that plaintiff had been driving in the course of her employment on a suspended license in violation of company policy. On April 8, 2005, plaintiff amended her complaint, alleging that her termination was a further act of retaliation (Item 8).

Defendants filed this motion for summary judgment on January 30, 2007 (Item 22). They argue that plaintiff's allegations do not support a prima facie case of retaliation. Further, even if the court were to decide that plaintiff met her initial burden, defendants argue that they have presented legitimate, non-retaliatory reasons for their actions and plaintiff cannot show that those reasons are pretext for retaliation. Finally, defendants argue that plaintiff's claim for the intentional infliction of emotional distress is without merit. For the reasons that follow, the defendants' motion for summary judgment is granted.


In April 2002, plaintiff was reassigned from her position as a news anchor at WGRZTV to the position of reporter. The decision to reassign plaintiff was made by the President and General Manger of WGRZ-TV Darryll Green (Item 23, Exh. F, p.4). Green left WGRZ in August 2003 and took a similar position with another Gannett station in Washington, D.C. (id., pp. 10-11). James Toellner became the President and General Manager of WGRZ-TV upon Green's departure (Item 23, Exh. G, pp. 19-20).

In June 2002, Ellen Crooke became the News Director of WGRZ-TV (Item 23, Exh. E, pp. 12-15). Ms. Crooke conducted a performance review of plaintiff in August 2003 (id., pp. 1-4). It was the first formal performance review conducted of plaintiff since 1998 (Item 31, ¶ 10). In the 2003 review, plaintiff's strengths were identified as her knowledge of the area, her contacts, and her willingness to ask "tough questions" (Item 23, Exh. H). It was noted that she needed to work on her tardiness, the quality of her performance during live shots, and embracing her role as a reporter (id.). Plaintiff's tardiness had been an issue when she was reassigned from the anchor position and continued to be an issue with Ms. Crooke (Item 23, Exh. E, pp. 17-19). Specifically, newsroom personnel were required to attend a 9:15 a.m. meeting, and plaintiff was frequently late for the meeting (id.).

Plaintiff was a contract employee until August 2003 when her contract expired (Item 23, Exh. M). At that time, plaintiff continued working at WGRZ-TV on a non-contract basis. She was put on a performance improvement plan to address certain issues, including tardiness, on-air performance, and her failure to file stories on the station's website (Item 23, Exh. F, pp. 28-29; Exh. O). Plaintiff was also advised that the expiration of her contract released her from the "non-compete" clause (Item 23, Exh. R). Prior to the expiration of her contract, plaintiff was advised that it was a violation of her contract to work in the Buffalo market at another station, although she could pursue employment opportunities at another Gannett station or in a non-Gannett market (Item 23, Exh. F, pp. 25, 35-36; Exh. O).

Plaintiff received all salary increases that had been negotiated in her contract (Item 23, Exh. S, pp. 21-22). Her salary remained as negotiated even though she was no longer a news anchor (Item 23, Exh. I, p. 87). She was not given a salary increase after the expiration of her contract in August 2003.

Plaintiff received a copy of an employee handbook on October 25, 1999 (Item 23, Exh. U). The handbook contains a provision which prohibits employees from driving on company business with a suspended license (id., Exh. W). Plaintiff executed a consent form on August 19, 2003 which allowed WGRZ-TV access to the Department of Motor Vehicles ("DMV") records of its employees (id., Exh X). DMV records received by WGRZTV indicated that plaintiff's license had been suspended in December 2003 (id., Exh. Y). Plaintiff received a notice from the Commonwealth of Pennsylvania in July 2003 informing her that her license would be suspended if she did not respond to a citation or summons previously issued (id., Exh. Z). She also received a notice from the New York State DMV in January 2004 informing her that her license was suspended for failure to respond to a summons in the Town of Tonawanda (id., Exh. AA). Plaintiff did not inform her employer of her suspended license as required by the employee handbook and continued to drive to location shots in the course of her employment (id., Exh. I, p. 42). On March 25, 2004, plaintiff met with James Toellner, President and General Manager of WGRZ-TV, who advised her that she was to be suspended from her employment for the violation of the driving policy pending a further determination (id., Exh. G, p. 44). On March 26, 2004, plaintiff's employment was terminated for the policy infraction and because Mr. Toellner believed that plaintiff was evasive and misleading after the issue was raised with her (id., pp 16, 79-80, 86). Mr. Toellner terminated plaintiff's employment after consulting with his superiors (id., pp. 56-57).

Despite being issued summonses in New York and Pennsylvania and failing to respond to them, and despite being sent notices that her driver's license would be suspended, plaintiff denied knowing that her license had been suspended and did not inform her employer of the suspension (Item 23, Exh. I, pp. 44-46). Plaintiff further states that on March 25, 2004, after learning of her suspension from Mr. Toellner, she went to the DMV, paid the ...

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