Friday, August 17, 2018
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Ninth Circuit:
Discriminatory Refusal-to-Hire Case Fails Where Employer Had No Open Position
Panel Affirms Dismissal of Action by Actress Who Quit Series, Later Wanted the Character She Played to Be Resurrected
By a MetNews Staff Writer
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VICTORIA ROWELL Actress |
An African American actress who quit a television series failed to make out a claim under either a federal civil rights statute or California’s Fair Employment and Housing Act based on the production company’s refusal to rehire her, the Ninth U.S. Court of Appeals held yesterday.
A three-judge panel affirmed the dismissal of Victoria Rowell’s retaliation action against Sony Pictures, which produces The Young and the Restless (“Y&R”), a soap opera that’s been on the air for 45 years. Rowell portrayed Drucilla Winters, a ballerina-turned-model, from 1990–98, in 2000, and 2002–07.
After she quit in 2007, the writers had the character fall off a cliff, with her body never recovered.
Rowell started pressing in 2010 for a return to the series. On Oct. 19, 2012, Sony Senior Vice President Steve Kent sent her an email explaining: “Bringing back the character of Dru is not a creative direction the show wishes to take.”
Retaliation for Criticisms
The actress contended that Sony refused to bring back the character and have her play the role because of her denunciations, while previously employed on the show, of the lack of diversity among cast members and crew. In addition to suing under California’s FEHA, she invoked 42 U.S.C. §1981 which bars discrimination in the “benefits, privileges, terms and conditions” of employment.”
Yesterday’s memorandum opinion, affirming a decision by District Court Judge John A. Kronstadt of the Central District of California, declares:
“Inherent in the standard for retaliatory failure-to-hire is the existence of an open ‘position’ to which the plaintiff applied….Rowell did not apply for an open position when she sought to reprise her role as Drucilla on Y&R; Drucilla had been written off the show in 2007 and there is no indication that Appellees planned to bring her back. Rowell therefore fails to state a prima facie claim for retaliatory failure-to-hire under either §1981 or FEHA.”
Direct Evidence
Rowell protested that she had “direct evidence” of discriminatory motivation. The opinion responds:
“[I]t stands to reason that an adverse employment action against a prospective employee arises only if there is employment to be had in the first place. Thus, whatever the substance of Rowell’s purported direct evidence, it cannot overcome her failure to satisfy a necessary criterion for stating an actionable retaliatory failure-to-hire claim.”
The case is Rowell v. Sony Pictures Television Inc., No. 17-55374.
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