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MARTINEZ v. NBC

December 13, 1994

ARISTIDES MARTINEZ, Plaintiff,
v.
NATIONAL BROADCASTING COMPANY, et al., Defendants.



The opinion of the court was delivered by: ACKERMAN

 Ackerman, D.J.

 This matter comes before the court today upon a motion by defendants, the National Broadcasting Company, Inc. ("NBC") and its subsidiaries, WNBC-TV, WRC-TV, and CNBC, *fn1" for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons detailed below, defendants' motion is granted in part and denied in part.

 I. Factual and Procedural Background

 Plaintiff Aristides Martinez is a Hispanic man who was born in Bogota, Columbia on July 5, 1937. He has been a member of the National Association of Broadcast Employees and Technicians, AFL-CIO ("NABET") since 1972.

 Plaintiff held various temporary jobs at NBC between 1973 and 1986. These temporary positions consisted of filling in for permanent employees who were either on vacation or on leave of absence. During this period, plaintiff worked for both the NBC Television Network and WNBC-TV, both of which are located in New York.

 Plaintiff was first permanently employed by WRC-TV and NBC News in Washington, D.C., on July 5, 1986 in a videotape editing position. Specifically, he was hired to work on a news magazine show entitled "1986." This show was cancelled by NBC in December of 1986. Following the cancellation, plaintiff, along with three other editors, was reassigned to NBC News' Washington operations. While working in this new position, plaintiff claims he was retaliated against and ostracized because his transfer as a permanent employee resulted in the loss of jobs for several temporary employees and because of his ethnicity. Plaintiff also claims that while at NBC News, William Krebs, a NBC News studio director, assaulted him verbally with derogatory and ethnic remarks.

 In early 1987, plaintiff was assigned to perform the task of playback operator--the person who plays back the news stories during the national news programs. While performing this task for NBC Nightly News, plaintiff admittedly made two mistakes. The first mistake resulted in a blank television screen for approximately two to three seconds during a Nightly News broadcast. The other mistake resulted in the playing of a story without the accompanying audio narration for approximately two to three seconds. However, plaintiff asserts that these mistakes were the result of unfair and discriminatory treatment by Krebs, who "intentionally, set [plaintiff] up, in disregard of proper technical procedures, to make over-the-air mistakes, in order to have a justification to criticize [plaintiff]." Martinez Cert. at P 23. Plaintiff claims that the mistakes were the result of Krebs' failure to properly cue the plaintiff. Plaintiff also claims that, during this time period, NBC failed to provide him with an editing room and the necessary equipment to do his job.

 Around July 30, 1987, NABET production personnel, including plaintiff, went out on strike. During the strike, Employee Relations in Washington undertook an evaluation of work force needs and determined that the work force at NBC in Washington should be reduced. After the strike, on October 30, 1987, seventeen NABET employees were laid off in reverse order of seniority by NBC in Washington. Plaintiff had low seniority because he was first hired by NBC News in Washington only one year before, and therefore, he was laid off. Plaintiff does not dispute that this layoff was solely the result of his low seniority.

 As a member of NABET, plaintiff was entitled to "recall rights" for a period of three years following his employment with NBC. Recall rights provide that to the extent that NBC in Washington needed to hire anyone new, it was obligated to first recall those employees who were laid off and who had not accepted a buy-out.

 Beginning late October of 1988, plaintiff attempted to obtain employment at CNBC, Inc., which is a wholly-owned subsidiary of NBC. Plaintiff never gained employment with CNBC and claims that CNBC has given preferential treatment to far less experienced, white, non-Hispanic, younger applicants.

 In his pursuit of employment at CNBC, plaintiff informed Nelson Rosabal, CNBC's vice president for personnel and who is Hispanic, that he had worked for NBC in Washington. Thus, Rosabal called Paul Besson, the Director of Employee Relations for NBC in Washington to determine if plaintiff would be recommended for employment should any openings become available. Besson informed Rosabal that plaintiff's supervisor in Washington, Ronald Knox, did not think his work was good enough to merit rehire. Knox based this opinion on statements by Cindy Bickford, who was at one time plaintiff's supervisor, that plaintiff was not an able documentary editor because he was very slow at operating the equipment. In addition, after Ms. Bickford left NBC, Knox became plaintiff's supervisor and observed him make several mistakes and have problems with technical equipment. Rosabal claims that based on this conversation with Besson, he concluded that he would not consider plaintiff for an engineering or tape editor's position should any openings occur. Plaintiff claims that Knox's conclusions about his work are false.

 On March 1990, Paul Besson forwarded a letter to all former NBC employees, including the plaintiff, who were laid off from NBC's Washington, D.C. office on October 30, 1987. Besson's letter made an offer to buy out each former employee's recall rights under the NABET-NBC Master Agreements in exchange for money and the execution of a General Release by each employee as to NBC. The Release provided, in general, that NBC was discharged from any claims that plaintiff may have against NBC "in connection with any matter arising out of my employment with NBC, the termination of my service of NBC, or with respect to any matter arising from the failure of NBC or GE to continue my employment." The release specifically referred to claims of discrimination. Following several communications between the plaintiff and employees of NBC, plaintiff signed the release. Plaintiff claims that Besson and Ellie Larson assured him of work if he signed the release; defendants dispute this claim.

 After signing the release, plaintiff continued to attempt to gain employment from CNBC.

 In March of 1991, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") against CNBC for its failure to hire him. The EEOC found no probable cause to support plaintiff's claims.

 On March 20, 1992, plaintiff filed a pro se complaint against NBC and CNBC alleging various grounds for relief. On June 29, 1992, plaintiff filed an amended complaint against NBC, WNBC-TV, WRC-TV and CNBC. Defendants answered the complaint and now move for summary judgment. Lastly, it should be noted that plaintiff has since retained an attorney.

 II. Summary Judgment Standard

 Federal Rule of Civil Procedure 56 provides that summary judgment may be granted only if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See also Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dism'd, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987). In other words, "summary judgment may be granted if the movant shows that there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Indiana Hospital, 843 F.2d 139, 143 (3d Cir.), cert. denied, 488 U.S. 870, 102 L. Ed. 2d 147, 109 S. Ct. 178 (1988).

 The substantive law will identify which facts are "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Therefore, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. An issue is "genuine" if a reasonable jury could possibly hold in the nonmovant's favor with regard to that issue. Id.

 The party seeking summary judgment always bears the initial burden of production, i.e., of making a prima facie showing that it is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). This may be done either by demonstrating there is no genuine issue of fact and that as a matter of law, the moving party must prevail or by demonstrating the nonmoving party has not shown facts relating to an essential element of the issue for which it bears the burden. Id. at 322-23. Once either showing is made, the burden shifts to the nonmoving party who must demonstrate facts supporting each element for which it bears the burden as well as establish the existence of genuine issues of material fact. Id. at 324.

 However, at the summary judgment stage, a court may not weigh the evidence or make credibility determinations--these tasks are left to the factfinder. Petruzzi's IGA v. Darling-Delaware, 998 F.2d 1224, 1230 (3d Cir. 1993). Therefore, to raise a genuine issue of material fact, "'the [summary judgment] opponent need not match, item for item, each piece of evidence proffered by the movant,' but simply must exceed the 'mere scintilla' standard." Id. See also Anderson, 477 U.S. at 252 ("The mere existence of a scintilla of evidence in support ...


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