A federal judge has thrown out most of a discrimination lawsuit that John Lobertini and Bill Schechner had filed against CBS and KPIX-TV over their firings in 2008.
Lobertini (left) and Schechner (right) argued they were victims of age and sex discrimination because they part of a round of layoffs involving five on-air employees who were all older men. At the time, Lobertini was 47 and Schechner was 66.
U.S. District Judge Marilyn Hall Patel, in an 18-page order released Wednesday (download), dismissed four of the plaintiffs' five claims, finding their evidence was "insufficient."
Schechner claimed that a pattern of discrimination against older reporters led to their firings. He said that in 2005, prior to his firing, KPIX news director Dan Rosenheim replaced him with a 39-year-old, calling Schechner's performance "lackluster."
"Despite plaintiffs' protestations to the contrary, the word 'lackluster' is not generally used as a synonym for 'old,'" she wrote. "Rather, it means “1. lacking brilliance, radiance, liveliness, etc; dull or vapid. 2. a lack of brilliance or vitality," she wrote, quoting from a dictionary.
Attorneys for Lobertini and Schechner also hired a statistical expert who concluded, "If age were not a factor in the selection of the five (5) individuals to be laid off, then there is only a 1.58% probability (or a 1 in 63 chance) that the mean age of the five (5) laid off individuals would be as great as it was ...”
Later in her order, the judge wrote, "Plaintiffs have failed to present any other evidence that independently or viewed in tandem with the statistical analysis, could give rise to an inference of age discrimination."
The judge dismissed four claims by the reporters — age discrimination, gender discrimination, punitive damages and lost wages — but left open the door for arguments on the issue of "disparate impact." The argument is that while it can't be proven that KPIX intended to discriminate, its actions nonetheless harmed employees based on their race or sex. The judge gave both sides 30 days to file briefs on that issue. (The case number is C 08-05049 MHP.)
Editor's note: An earlier version of this posting didn't mention the "disparate impact" claim that remains open.
Update, Monday, July 19, 7 p.m.: Chronicle: Ex-KPIX reporters lose ruling in age-bias suit