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Rivera v. Townsquare Media Broadcasting, LLC

United States District Court, W.D. Texas, Austin Division

February 22, 2018




         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically, Defendant Townsquare Media Broadcasting (Townsquare)'s Motion for Summary Judgment [#39], Plaintiff Charles Rivera's Response [#40] in opposition, and Townsquare's Reply [#41] in support. Having reviewed the documents, the relevant law, the arguments of counsel, and the case file as a whole, the Court now enters the following opinion and order.


         This is an employment discrimination and retaliation case. In the fall of 2013, Rivera was hired by Townsquare as a radio announcer for KOOC, a hip-hop radio station located in Temple, Texas. Mot. Summ. J. [#39-1] App. at 3; Resp. Mot. Summ. J. [#40-1] Ex. A at 2.[1] As a radio announcer, Rivera's primary on-the-job duty was to act as an announcer and "DJ" for KOOC. Resp. Mot. Summ. J. [#40-1] Ex. B (Rivera Decl.) at 2-4. In addition to these primary duties, Townsquare also required Rivera to author twelve short blog posts each week regarding current events and local news. Id. at 4. According to Rivera, a comparatively large proportion of KOOC's audience is black, and in his capacity as a hip-hop radio announcer, Rivera frequently brought black music artists into the studio to have them on air. Id. at 2-3; id. [#40-3] Ex. C (Wiederhold Dep.) at 12-13.

         Rivera's local manager at the station was Laura Wiederhold. Wiederhold Dep. at 5-7. Though the first year of Rivera's employment apparently passed without incident, Rivera alleges that Wiederhold frequently complained to Rivera about his interactions with black men at the radio station. Rivera Decl. at 2-4.[2] At one point in 2015, Wiederhold called the police when she saw black men congregating outside of the radio station after dark. Id. Wiederhold explained in her deposition that she called the police because the black men were assembled at the radio station's front entrance and she was unaware anyone was expecting visitors. Reply Mot. Summ. J. [#41-1] App. at 1-19.[3] In actuality, the men had come to the station to meet with Rivera and were standing outside with him when Wiederhold called the police. Resp. Mot. Summ. J. [#40-1] Ex. I at 7.

         Rivera alleges Wiederhold's racial animus extended beyond casual remarks to impact operational aspects of his work for KOOC. For example, Rivera alleges the other Townsquare radio stations were given more opportunities and better equipment with which to work because their audiences consisted of non-black listeners. Rivera Decl. at 3. At his deposition, Rivera also alleged Wiederhold interfered with his ability to enter contractual arrangements with black music artists by attempting to make Rivera charge KOOC's predominately black artists for playing their music or for interviews, despite the fact that this was not typically done for artists on other stations. Rivera Dep. at 7.

         Eventually, Rivera complained to his operations manager, Vince Richards, about the unequal treatment he was receiving as the radio announcer at KOOC. Rivera Decl. at 3-4. Specifically, Rivera told Richards that Wiederhold, the local manager, was discriminating against Rivera because he was the announcer for the hip-hop station and because Wiederhold was afraid of black men. Id. Rivera alleges Richards was insensitive to these complaints and told Rivera to stop complaining. Id. Additionally, Richards allegedly told Rivera to be "careful" about having black men come to the station. Id.

         Either prior to or simultaneous with Rivera's complaints of discrimination, [4] Tan Curtis, a digital managing editor for Townsquare, "began a campaign of concentrating on Rivera's blog posts" to detect potential plagiarism. Resp. Mot. Summ. J. [#40-1] Ex. A at 4. This alleged investigation revealed several instances of alleged plagiarism or shoddy attribution. Townsquare's motion for summary judgment identifies three instances in which Rivera allegedly plagiarized content produced by third parties. In the first instance, Rivera wrote a post which "featured a quote originally published by the New York Times." Mot. Summ. J. [#39] at 13. In the second instance, Rivera "borrowed multiple quotes" originally published in an All article. Id. In the third instance, Rivera's post contained two sentences that "were nearly identical" to sentences in a TMZ article. Id.

         On January 27, 2015, Tan Curtis and Vince Richards met with Rivera regarding Townsquare's plagiarism and attribution policies. Mot. Summ. J. [#39-2] Appendix at 230. Curtis explained Rivera should include attribution and hyperlinks in his blog posts when he gathered information from outside sources and also informed Rivera he should add a local or personal spin when adapting posts written by Townsquare's national team. Id.[5]After the meeting, Curtis sent out an email which states "[o]ur concerns discussed, we look forward to a productive and creative 2015." Id. The email does not suggest Townsquare was considering terminating Rivera for his past conduct. Id.

         On May 8, 2015, Curtis emailed Wiederhold and Stephanie McMaster, a regional digital manager and reported Rivera was "Plagiarizing Again (Sort of)" but that Rivera's transgressions were "not exactly plagiarism." Mot. Summ. J. [#39-3] Appendix at 19. Curtis explained that Rivera's posts did not actually constitute plagiarism but probably violated Townsquare's "proper attribution protocols." Id. at 27. Curtis believed the posts showed Rivera was intent on "trying to find . . . ways around putting in the effort required to complete his regular posting duties." Id. at 19. Wiederhold forwarded this email to Richards. Resp. Mot. Dismiss [#40-4] Ex. D at 20.

         In a follow-up email on May 27, 2015, Curtis emailed Richards and McMaster ten collected examples of alleged plagiarism and shoddy attribution. Mot. Summ. J. [#39-3] Appendix at 19. Of these ten examples-drawn from over 600 blog posts authored by Rivera- only four were posted subsequent to the January 27 meeting. Id. Curtis's email acknowledges these four instances of alleged plagiarism were "more subtle" than on previous occasions, a development he attributes to "evolution" in Rivera's plagiarism technique. Id. Curtis further explained that if he could google a phrase from one of Rivera's articles and find another article using the same phrase, "that's plagiarism, plain and simple." Id.[6]

         On May 28, 2015, Richards sent an email to Kurt Johnson, a senior vice-president for programming at Townsquare, stating they had "discover [sic] a case of plagiarism in the Killeen/Temple market." Resp. Mot. Summ. J. [#40-4] Ex. D at 40-41. Richards did not share Curtis's equivocations regarding whether or not Rivera's posts constituted plagiarism, instead informing Johnson that Curtis, Richards, and McMaster had concluded Rivera was actively engaged in plagiarism. Id.

         On the same day, Johnson also received an email from Rivera himself, in which Rivera complained of discrimination at the radio station, including the directive that KOOC music artists pay for interviews. Id. at 39. Rivera believed this constituted discrimination because other stations were not required to charge their music artists for interviews. Rivera Decl. at 2-4. In spite of the concerns raised by Rivera in his email, Johnson left the role of reviewing Rivera's posts to Richards and two other managers. Id. [#40-5] Ex. E at 30-31.

         Following a review by Richards and others, Rivera was informed on June 23, 2015 that he was being terminated for violating Townsquare's plagiarism policy. Mot. Summ. J. [#39-2] Appendix at 162. Townsquare then hired an African-American man, Shannon Brazier, to replace Rivera. Id. at 163-64.

         In response to his termination, Rivera filed a complaint against Townsquare with the Texas Workforce Commission. Am. Compl. [#9] at 5. Rivera subsequently filed this suit in federal court alleging Townsquare's actions violated 42 U.S.C. §§ 2OOOe-2(a), 2OOOe-2(a), and 1981. Id. at 1. Townsquare now files a motion for summary judgment. Mot. Summ. J. [#39]. The motion is ripe for review.


         I. Legal Standard

         Summary judgment shall be rendered when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 411 U.S. at 254-55.

         Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. Id. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.

         "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 248. Disputed fact issues that are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

         II. Application

         Rivera brings a racial discrimination claim under 42 U.S.C. § 2OOOe-2(a) and retaliation claims under §§ 2OOOe-3(a) and 1981.[7] Discrimination and retaliation claims based on circumstantial evidence are reviewed under the McDonnell Douglas burden-shifting framework. See Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) (outlining element of prima facie case of discrimination); see also Wheat v. Fla. Par. Juvenile Justice Comm'n, 811 F.3d 702, 705 (5th Cir. 2016) (outlining elements of prima facie case of retaliation).

         Under McDonnell Douglas, the plaintiff must first establish a prima facie case by producing evidence in support of each element of the claim. McKinsey, 375 F.3d at 360 (noting burden is one of production, not persuasion). If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate some legitimate reason for the employer's action. Id. Once the employer articulates a legitimate reason for the action, the burden then shifts back to the plaintiff to "demonstrate the employer's proffered explanation is unworthy of credence." Id. The plaintiff can meet this burden by either providing evidence of intentional discrimination or retaliation or by providing evidence establishing the falsity of the employer's explanation. Id.

         A. Racial ...

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