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Burlington v. News Corp.

United States District Court, E.D. Pennsylvania

October 24, 2014

THOMAS BURLINGTON
v.
NEWS CORPORATION, ET AL

Page 724

For THOMAS BURLINGTON, Plaintiff: LAURA CARLIN MATTIACCI, LEAD ATTORNEY, ANDREW L. MACKERER, CONSOLE LAW OFFICES, LLC, PHILADELPHIA, PA; RAHUL MUNSHI, LEAD ATTORNEY, CONSOLE LAW OFFICES, PHILADELPHIA, PA.

For FOX TELEVISION STATIONS, INC., FOX TELEVISION STATIONS OF PHILADELPHIA, INC., Defendants: THOMAS K. JOHNSON, II, LEAD ATTORNEY, JEFFREY W. RUBIN, DECHERT LLP, PHILADELPHIA, PA; JEROME A. HOFFMAN, DECHERT LLP, PHILA, PA.

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MEMORANDUM

R. BARCLAY SURRICK, J.

Presently before the Court is Defendants' Motion for Reconsideration. (ECF No. 50.) For the following reasons, Defendants' Motion will be denied.

I. BACKGROUND

This is an action for race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000a, et seq., 42 U.S.C. § 1981, and the Pennsylvania Human Relations Act (" PHRA" ), 43 Pa. Cons. Stat. § § 951, et seq. Plaintiff Thomas Burlington, a white male, alleges that he was terminated by his employer[1] for using the word " nigger" in a non-pejorative manner during a newsroom editorial meeting, while African American employees were not punished for using the word in the workplace. (Compl. ¶ ¶ 26-42, ECF No. 1.)

A. Facts[2]

Plaintiff was hired by Defendants as a reporter in December 2004. (Pl.'s Dep. 146:16-20, Pl.'s Resp. Mot. Summ. J. Ex. A, ECF No. 28.) Plaintiff received a B.S. in Journalism from the University of Colorado in 1984 and an M.A. from Wake Forest University in 1994. (Pl.'s Resp. Mot. Summ. J. Ex. B at 1.) He had 17 years of experience as a reporter or anchor when he was hired by Defendants.

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( Id.) Plaintiff won several awards for his reporting, including the Edward R. Murrow Award. ( Id.) His written evaluations while an employee at the Station rate him as a " Solid Performer." ( See Pl.'s Resp. Mot. Summ. J. Ex. F, Ex. G (two evaluations rating Plaintiff a " 3 - Solid Performer" on a 1 to 5 scale).) Plaintiff was promoted to weekend anchor/reporter on February 20, 2006. (Pl.'s Resp. Mot. Summ. J. Ex. H.) Joyce Evans, an African American female, was Plaintiff's weekend co-anchor. (Pl.'s Dep. 148:16-17.)

The Station regularly held newsroom editorial meetings in which its journalists discussed the stories that would air on that evening's news broadcast. (Renda Dep. 95:23-96:8, Pl.'s Resp. Mot. Summ. J. Ex. J.) Plaintiff claims that he suffered reverse discrimination as a result of a comment that he made at a newsroom editorial meeting on June 23, 2007. Plaintiff attended the June 23rd newsroom editorial meeting along with eight of his coworkers. The individuals who attended the meeting and their races are as follows:

o Plaintiff--Whiteo Christopher Denton--Whiteo Cynthia Cappello--Whiteo Charles Edmondson--Whiteo John Jervay--African Americano Rebecca Rogers--Whiteo Tor Smith--African Americao Robin Taylor--Whiteo Nicole Wolfe--African American

(Pl.'s Resp. Mot. Summ. J. Ex. O at 7-8.) During the June 23rd meeting, the group discussed a story about the Philadelphia Youth Council of the NAACP holding a symbolic burial for the word " nigger." (Pl.'s Dep. 161:13-19.) Robin Taylor was assigned to the story. (Taylor Dep. 63:4-8, Pl.'s Resp. Mot. Summ. J. Ex. N.) Taylor had attended the symbolic burial and testified that the participants at the burial used the word " at least a hundred times or more" during the course of the proceedings. ( Id. at 65:9-13.) Taylor discussed the story with her colleagues at the editorial meeting and consistently referred to the racial slur as " the n-word" instead of using the full word. (Taylor Dep. 80:21-81:4.) During the meeting, Plaintiff asked, " Does this mean we can finally say the word 'nigger?'" (Pl.'s Dep. 162:3-4.) Taylor said that she would not say the word in her story. ( Id. at 163:16-22.) Plaintiff told Taylor that although he did not necessarily expect her to use the word in her story, he thought that doing so gave the story more credence. (Taylor Dep. 82:20-83:10.) At his deposition, Plaintiff testified that he " wanted to make the point that I felt if we're going to refer to the word 'nigger,' we should either say the word 'nigger' or refer to it as a racial epithet or a slur instead of using the phrase the 'N' word." (Pl.'s Dep. 161:20-24.) Plaintiff used the word once during the newsroom meeting. ( Id. at 165:17-21; Taylor Dep. 87:12-14.) Nicole Wolfe exclaimed in response to Plaintiff's use of the word, " I can't believe you just said that!" (Pl.'s Dep. 182:15-18; Tyler Dep. 16:14-18, Pl.'s Resp. Mot. Summ. J. Ex. K.) Neither Plaintiff nor Taylor recalls anyone else saying anything on this subject during the meeting. (Pl.'s Dep. 163:23-24; Taylor Dep. 85:6-10.)

After the discussion about whether to use the word, the meeting proceeded as normal, though Plaintiff noticed that his comments had elicited a negative reaction from Nicole Wolfe. (Pl.'s Dep. 163:2-164:10.) Wolfe later told Taylor that she was offended by Plaintiff's use of the racial slur during the meeting. (Taylor Dep. 88:8-18.) Nobody at the meeting believed that Plaintiff used the word in its pejorative sense as a racial slur. ( See, e.g., Ali Dep. 104:20-105:1, Pl.'s Resp. Mot. Summ.

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J. Ex. I.) Taylor later told the head of human resources, Ameena Ali, that she thought more was being made of the situation than should be, and that Plaintiff had not acted maliciously in making his statements during the meeting. ( Id. at 210:23-211:5.)

After the meeting, Plaintiff approached Wolfe and said that he had sensed that she was upset and " wanted to explain." (Pl.'s Dep. 166:18-23.) Wolfe said that she did not want to discuss the meeting. ( Id. at 167:2-8.) Soon thereafter, Plaintiff was confronted by Joyce Evans, who was not present at the meeting but had been approached by several meeting attendees who had been offended by Plaintiff's remarks. (Tyler Dep. 15:8-18; Evans Dep. 68:19-23, Pl.'s Resp. Mot. Summ. J. Ex. W.) Evans informed Plaintiff that he had upset his coworkers, and Plaintiff decided to talk to each of the attendees individually. (Pl.'s Dep. 174.) Plaintiff spoke to John Jervay and explained his rationale for using the word during the meeting. Jervay perceived this to be " some form of an apology." (Jervay Dep 39:17-18, Def.'s Mot. Ex. 14, ECF No. 26-5.) During the conversation with Jervay, Plaintiff again used the word once or twice. ( Id. at 39:1-18.) Plaintiff had similar conversations with Christopher Denton, Cynthia Cappello, Charles Edmondson, and Tor Smith. (Pl.'s Dep. 177:12-19.) As with Jervay, Plaintiff used the word in several (though not all) of these conversations. ( See, e.g., id. at 172:25-173:9, 185:6-14.) After he explained himself and apologized to his coworkers, Plaintiff again spoke to Evans. (Pl.'s Dep. 187:14-19.) Plaintiff testified that during this conversation, " Joyce said, [b]ecause you're white you can never understand what it's like to be called a nigger and that you cannot use the word 'nigger.'" (Pl.'s Dep. 188:18-23.) Evans denies telling Plaintiff that he could not say the word because he was white, and she also denies ever saying the word during her conversation with Plaintiff. (Evans Dep. 18:9-20.) Plaintiff testified that Evans used the word twice in their conversation. (Pl.'s Dep. 157:6-8.) Plaintiff told Evans that he was surprised at her position, because he did not believe that a journalist was not allowed to say certain words in an editorial context.[3] ( Id. at 188:4-189:4.)

The conversation ended with Evans and Plaintiff in full disagreement. ( Id. at 193:21-22.) Thereafter, Plaintiff overheard Evans telling another employee that " people get fired for using that word." ( Id. at 194:2-6.) Plaintiff testified that at that point, he realized that " she was not letting this go." ( Id. at 194:6-7.) On Sunday, June 24, Evans called the Assistant News Director, Leslie Tyler, at home to tell her about Plaintiff's actions at the previous day's newsroom editorial meeting. Tyler is African American. (Tyler Dep. 14:17-15:21, Pl.'s Resp. Mot. Summ. J. Ex. K, ECF No. 28.) Evans told Tyler that employees were upset over what Plaintiff had said during the meeting. ( Id. at 15:8-18.) Evans felt that Tyler should know what had happened in the meeting and how people reacted to it. ( Id.) Tyler called several employees that day to find out what had happened in the meeting. ( Id. at 21:14-16.) Tyler testified that she believes that she called Nicole Wolfe, John Jervay, Tor Smith, Becky Rogers and Robin Taylor. ( Id.) Plaintiff contends based on Taylor's and Rogers's deposition testimony that Tyler only called the African American employees who were present at the

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meeting.[4] (Pl.'s Resp. Mot. Summ. J. 16-17.) Defendants dispute this, pointing out that Tyler and/or Ali eventually spoke to Christopher Denton, who is white, and several other white employees who attended the meeting. (Def.'s Reply 29-30.) In any event, the record shows that on Sunday, June 24, 2007, Tyler called all the African American employees who had been present at the meeting but had not called the majority of the white attendees, including Plaintiff himself.

On Monday, June 25, Tyler spoke to the News Director at the Station, Philip Metlin, about the June 23 meeting and its aftermath. Metlin is a white male. (Tyler Dep. 26:23-27:18.) Tyler had intended to inform Ameena Ali about the situation, but Metlin told Tyler not to contact Ali or to do anything else at that juncture. ( Id. at 28:6-12, 31:4-17.) Over the following few days, Tyler received emails from several of the people whom she had called the previous Sunday. Tor Smith sent an email to Tyler and Metlin on Wednesday, June 27. (Smith Dep. 24:16-17, Pl.'s Resp. Mot. Summ. J. Ex. T.) Joyce Evans had recommended that Smith speak to Tyler about his discomfort with Plaintiff's comments. Tyler in turn recommended that Smith detail his complaint about Plaintiff in an email to Tyler and Metlin. ( Id. at 31:1-24.) Smith's email details his version of Plaintiff's remarks during and after the June 23 meeting. (Def.'s Mot. Ex. 16, ECF No. 26-6.) Nicole Wolfe also wrote an email to Metlin and Tyler, as did Becky Rogers. ( Id. Ex. 17; Ali Dep. 200:22-201:8.) In addition, John Jervay sent an email describing Plaintiff's actions to Metlin and Tyler. Jervay's email explicitly uses the word " nigger" three times, twice in all capital letters. (Def.'s Mot. Ex. 18, ECF No. 26-6.)

Becky Rogers wrote her email to Metlin and Tyler after a conversation with Joyce Evans in which Evans asked Rogers how she felt about Plaintiff's behavior at the meeting. Rogers said that she was " horrified." (Rogers Dep. 102:23-103:3.) Evans said that it was important that Rogers let management know how she felt because " [t]he only people who have complained so far have been black people." ( Id. at 103:6-16.) Rogers said that she would think about it. ( Id. at 104:14-16.)

At this point, Metlin brought the issue to Mike Renda, the General Manager of the station. Renda is a white male. (Renda Dep. 20:7-21:11, Pl.'s Resp. Mot. Summ. J. Ex. J, ECF No. 28.) Renda ordered Ameena Ali to conduct an investigation into Plaintiff's actions. ( Id. at 21:14-24:7.) As part of that investigation, Ali asked Plaintiff to participate in a meeting with her, Metlin, and Renda on June 29, 2007. (Def.'s Mot. Ex. 24.) During the meeting, Metlin asked Plaintiff to give his version of the events at the editorial meeting the previous Saturday. ( Id.) Plaintiff recited what he had said in the editorial meeting, using the word in the process. ( Id.; Ali Dep. 146:14-147:13.) Ali responded, " Tom, you're still saying the word, why are you doing that?" (Ali Dep. 148:21-149:3; see also Pl.'s Dep. 214:14-23 (" Ms. Ali cut me off and said, 'I can't believe you said it again. . . . Don't

Page 729

you know you can't use that word?'" ).) Plaintiff replied that he was simply relating what had happened at the editorial meeting, as Metlin had requested. (Pl.'s Dep. 214:25-215:3.) Ali testified that she found Plaintiff's use of the word during the meeting offensive. (Ali Dep. 149:12-15.) Metlin, who is Jewish, explained to Plaintiff that his use of the word was akin to calling someone a " kike." (Metlin Dep. 155:7-20.) Metlin told Plaintiff that he would be suspended pending an investigation, and the meeting ended abruptly. (Pl.'s Dep. 216:17-19.) The entire meeting lasted about five minutes. ( Id. at 214:11.) Plaintiff did not have an opportunity to give his version of the events that occurred after the editorial meeting, including his apologies to coworkers. ( Id. at 213:15-20.)

Plaintiff was never asked to explain his side of the story during the subsequent investigation. (Ali Dep. 185:16-187:3.) Plaintiff emailed Metlin on June 30 requesting an " opportunity to allow you to assess my sincerity by speaking with you face-to-face so you can hear what is in my head and in my heart." (Pl.'s Resp. Mot. Summ. J. Ex. EE.) Plaintiff never received a response from Metlin. (Pl.'s Resp. Mot. Summ. J. Ex. X at 5.) As part of the investigation, Ali spoke to Cyndi Cappello, Nicole Wolfe, and Robin Taylor.[5] (Ali Dep. 212:22-213:13.) Ali did not speak to Plaintiff during the course of the investigation. ( Id. at 185:16-187:4.) Nor did Ali inquire as to whether the employees who had attended the June 23rd editorial meeting had reacted to Plaintiff's comments the way they did because of Plaintiff's race. ( Id. at 108:23-109:6.)

The investigation concluded on July 3, 2007. (Pl.'s Resp. Mot. Summ. J. Ex. JJ.) Plaintiff was issued a memorandum entitled " Final Warning and Employee Assistance Program Referral." ( See id.) The memorandum briefly described the events that had led to Plaintiff's suspension and informed Plaintiff that " [y]our behavior was unacceptable and will not be tolerated. You will not be warned again. Further failure to meet the job performance standards of your position will result in the immediate termination of your employment." ( Id.) It referred Plaintiff to sensitivity training and stated that Plaintiff's failure to contact the Employee Assistance Program (" EAP" ) to schedule the sensitivity training, or to follow its recommendations, would be interpreted as a refusal to cooperate. ( Id.) According to Plaintiff, Mike Renda told Plaintiff at about this time that they were " going to ride this one out," and that Plaintiff would be reinstated if he complied with the EAP's requirements. (Pl.'s Dep. 224:4-7.) Phil Metlin testified that at this point Defendants had most likely not yet decided to terminate Plaintiff, as they would not have given a final warning to an employee whom they had decided to terminate. (Metlin Dep. 259:5-8.)

On July 5, 2007, the Philadelphia Daily News published an article about Plaintiff's suspension in which it stated that " FOX 29 anchor/reporter Tom Burlington has been suspended by the station following what sources describe as a 'bizarre' and 'shocking' sermon in which he insisted there's nothing wrong with a word most commonly referred to as 'the N-word.'" Dan Gross, Fox's Tom Burlington suspended, Phila. Daily News, July 5, 2007. The article stated that Plaintiff had " used the word more than a dozen times as he argued that doing so was not such a big deal." Id. Plaintiff called the article " false

Page 730

and defamatory" and suggested that the source of the Daily News's information was a coworker who wanted to end Plaintiff's career. (Pl.'s Resp. Mot. Summ. J. Ex. X at 4; Pl.'s Dep. 264:2-8.) The Philadelphia Tribune picked up the story the following day, running a front-page article with Plaintiff's picture. Larry Miller, Fox news anchor suspended--reports say journalist used the 'n-word', Phila. Trib., July 6, 2007, at 1A. The story was subsequently picked up by several other print and online media outlets. ( See generally Def.'s Mot. 13 (citing news articles).)

The Daily News article attributes its information about the June 23 editorial meeting to Plaintiff's colleagues at the Station. See Gross, supra. Phil Metlin acknowledged that leaking information about the editorial meeting would be a violation of the Station's policies. (Metlin Dep. 180:2-6.) Mike Renda testified that if he learned of a Station employee leaking this story to the press, the employee most likely would have been terminated. (Renda Dep. 77:10-78:24.) The Station did not conduct an investigation to determine whether one of its employees had leaked the story to the media. (Renda Dep. 85:4-10.)

The Station's management began to receive requests from employees that they not be assigned to work with Plaintiff. Photographer Paxton Reese emailed Chief Photographer John Campbell with a request that he not be assigned to work with Plaintiff. (Defs.' Mot. Summ. J. Ex. 27.) Paxton Reese is African American. Mike Renda testified that other photographers requested that they not be assigned to work with Plaintiff because they were concerned for their safety if they appeared on the street with Plaintiff. (Renda Dep. 172:21-173:6.)

In the meantime, Plaintiff complied with the EAP's requirements. (Ali Dep. 249:6-20.) On July 6, 2007, the EAP informed Ali that Plaintiff was fit to return to work. ( See Pl.'s Resp. Mot. Summ. J. Ex. MM (stating that Plaintiff was " in compliance" and was fit to return to work, and that " [h]e feels very badly and is remorseful about what happened" ).) Ali forwarded the email to Mike Renda. ( See id.) On July 9th, Renda replied to Ali's email, stating, " [w]e need to talk ...


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