Metropolitan News-Enterprise


Thursday, June 1, 2006


Page 1


C.A. Upholds Termination of Longtime General Manager at KNX


By KENNETH OFGANG, Staff Writer/Appellate Courts


Infinity Broadcasting Corporation did not discriminate against longtime KNX general manager George Nicholaw when it terminated his employment at the radio station three years ago at age 75, the Court of Appeal for this district has ruled.

Div. One affirmed a summary judgment in favor of Infinity, rejecting Nicholaw’s contention that triable issues existed on his claims for age discrimination, bad faith, and breach of an implied contract not to terminate without good cause.

Nicholaw was the station’s vice president and general manager from 1967, when it went to an all-news format, until 2003, when his position was eliminated as part of a corporate reorganization. Nicholaw was well-known to the station’s listeners because he personally delivered its editorials for years.

Merger Changes

CBS-owned KNX competed head-to-head for years with the other all-news station in the market, KFWB, which was part of the Westinghouse chain. Although CBS and Westinghouse merged in 1995, the stations were independently managed before Viacom acquired CBS and Infinity and consolidated all of its radio stations under the management of Infinity.

In August 2003, the new Infinity chief executive, Joel Hollander, announced the creation of a new position, vice president and market manager, with oversight of both stations. His choice for the post was longtime Infinity employee Patrick Duffy, who was then 55 years old and the general manger of KRTH, an Infinity FM station.

A month later, Hollander came to Los Angeles and told Nicholaw that Duffy would be running KNX and KFWB and that Nicholaw’s position was being eliminated. He offered Nicholaw two years of further employment as senior vice president of news and public affairs for both stations at a salary of $100,000—he was making $245,000 at the time—with none of the stock options or performance bonuses he had been receiving as general manager.

Severance Offer

Under Hollander’s offer, Nicholaw would have resigned after two years and executed a waiver of all claims against the company in exchange for a $150,000 lump sum severance payment. Alternatively, he was given the option of resigning immediately and waiving all claims in exchange for 96 weeks’ severance pay.

He rejected both offers and was terminated a week later, and later sued the company claiming it had terminated him because of his age and in violation of an implied contract.

Los Angeles Superior Court Judge Rolf Treu concluded that Nicholaw lacked a viable case and granted Infinity’s motion for summary judgment.

Presiding Justice Vaino Spencer, in an unpublished opinion Tuesday for Div. One, said the trial judge was correct.

In a discrimination case, Spencer explained, if the defendant offers competent evidence of a nondiscriminatory motive, the plaintiff can avoid summary judgment only by presenting “specific and substantial evidence of pretext.” Nicholaw, she explained, fail to do so.

The evidence presented by Infinity showed that the company had a nondiscriminatory motive for eliminating the positions previously held by Nicholaw and by his KFWB counterpart—a desire to increase profitability by consolidating management of the stations under a single executive with experience running several stations, Spencer said.

Hollander, she noted, testified that Duffy was chosen in part because he had worked at KABC when it carried Dodger games and would bring his know-how to programming related to KFWB’s Dodger broadcasts, and that age had nothing to do with the decision.

The mere fact that Duffy was younger than Nicholaw did not create an inference of discrimination, Spencer—who is 85—wrote for the court. She noted that the station had treated Nicholaw more favorably than his KFWB counterpart, Roger Nadel, who was three years younger than Duffy and 23 years younger than Nicholaw, and who was not offered continued employment or a severance package.

Nor was the required inference created by a comment allegedly made—and denied—by Hollander to the effect that he understood Nicholaw’s angst because Hollander’s father-in-law was 79 years old. While Nicholaw said he considered Hollander’s tone at the meeting to be “disrespectful and arrogant,” Hollander testified that he was trying to be empathetic to an upset employee who was obviously having a difficult time.

In any event, Spencer said, a “stray remark” by an employer does not establish a triable issue as to the existence of a discriminatory motive.

The presiding justice went on to say that Nicholaw’s years of service, positive performance evaluations, and past merit raises did not create a triable issue as to whether he had an implied contract guaranteeing continued employment in the absence of good cause for termination.

The presiding justice pointed out that months before he was terminated, Nicholaw signed an agreement confirming the terms of his employment, in which he specifically acknowledged that it was terminable at will by him or by the company, and that he testified in his deposition that no one at Infinity had given him any assurance of continued employment and that he was unaware of any restrictions on the company’s ability to eliminate his position.

Even if he had not signed the agreement, Spencer continued, his employment history would not have been enough to create the alleged implied contract. The jurist added that Nicholaw had no claim for bad faith, since there could not be tort liability for breaching an implied contract that didn’t exist.

Attorneys on appeal were Neil Papiano, Patrick McAdam, and Joanna L. Orr of Iverson, Yoakum, Papiano & Hatch for Nicholaw and Christopher G. Caldwell, Andrew Esbenshade and Albert Giang of Caldwell, Leslie, Newcombe & Pettit for Infinity.

The case is Nicholaw v. Infinity Broadcasting Corporation, B185428.


Copyright 2006, Metropolitan News Company