Being a middle-aged male isn't the greatest burden in American society. Yet former KPIX Channel 5 reporters Bill Schechner and John Lobertini claimed their age and gender got them fired in 2008 and filed suit
. A judge last week ruled against them
-- and also provided a gratuitous lesson regarding the English language.
Schechner, 66, and Lobertini, 47, -- both recognizable faces for San Francisco television viewers -- were sent packing in '08 after CBS mandated KPIX trim its expenses by 10 percent. The reporters sued CBS, claiming the network violated the California Fair Employment and Housing Act in allegedly targeting only older, male on-air talent. Yet San Francisco District Court Judge Marilyn Hall Patel
largely granted all of CBS' wishes in a summary judgment. And she did so with verve.
In short, Patel claimed the ex-reporters did not meet the burden of proof in their claims that either age or gender led to their dismissal. Regarding Schechner's claim that he had earlier been replaced as a weekend anchor by a 39-year-old following management's claims his work had been "lackluster," Patel wryly noted that "old" and "lackluster" are not synonyms. She then went on to list exactly what lackluster does
mean, as defined by the Random House College Dictionary's revised edition of 1982:
"Despite plaintiffs' protestations to the contrary, the word
'lackluster' is not generally used as a synonym for 'old.' Rather, it means "1. lacking brilliance, radiance, liveliness, etc;
dull or vapid. 2. a lack of brilliance or vitality."
Patel was a bit more respectful of a mathematical analysis conducted on the plaintiffs' behalf by Professor William Lepowsky
. Running a dozen separate calculations, Lepowsky determined that the odds of KPIX randomly laying off five reporters who all happened to be middle aged or older, given its talent pool, was just one in 63.
Lepowsky's analysis, while eye-opening, did not take employees' contractual status into account. What's more, Patel ruled, merely relying on statistical evidence -- to the absence of everything else -- wasn't good enough.
It was good enough, however, to leave open the possibility of a "disparate impact" claim -- "Employees must prove that a facially neutral employment practice had a discriminatory impact on older workers."
Both sides have until next month to get the paperwork in on that, should they so choose.
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