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Bagnall v. State of Rhode Island Commission for Human Rights

Superior Court of Rhode Island

April 17, 2014

MARY L. BAGNALL
v.
STATE OF RHODE ISLAND COMMISSION FOR HUMAN RIGHTS and UPN28 TV, WLWC, PARAMOUNT PICTURES

Providence County Superior Court

For Plaintiff: Robert E. Savage, Esq.

For Defendant: Thomas W. Lyons, III, Esq., Laurie Nicole Robinson, Esq., Cynthia M. Hiatt, Esq.

DECISION

VOGEL, J.

Mary L. Bagnall (Bagnall or Appellant) appeals from a decision of the State of Rhode Island Commission for Human Rights (Commission) denying her discrimination claim against UPN28 TV, WLWC, Paramount Pictures (Employer). Bagnall filed a charge against Employer alleging that Employer discriminated against her with respect to termination from her employment because of her age in violation of G.L. 1956 § 28-5-7. Bagnall took a timely appeal to this Court from the Commission's decision. Jurisdiction is pursuant to G.L. 1956 § 45-53-5(c). For the reasons set forth herein, the Court affirms the decision of the Commission.

I

Facts and Travel

Bagnall worked for Employer as an Account Executive for approximately six months in 2000, from January through June. R. Ex. 1, Decision at 2, 6. Her role as an Account Executive was to sell television advertising for Employer's Channel 28. On June 30, 2000, her supervisor, Francis Perdisatt (Perdisatt), terminated her for performance issues. Id. at 6. On October 3, 2000, Bagnall filed a charge of discrimination with the Commission alleging that Employer had discriminated against her "with respect to terms and conditions of employment and termination from employment because of her age" in violation of § 28-5-7. Id. at 1. After an investigation, on July 16, 2002, Preliminary Investigating Commissioner Richard Ferland ruled that there was probable cause to believe that Employer violated § 28-5-7. Id. Specifically, the Preliminary Investigating Commissioner found probable cause to believe that:

"a. The complainant's date of birth is December 13, 1947;
"b. The complainant was employed by the respondent for approximately five (5) months and held the position of Account Executive at the time of her termination on or about June 29, 2000. The person who hired the complainant left the employment of the respondent before the complainant started;
"c. Within one month of the hire of the new local Sales Manager, Mr. Joe Charves, the complainant began to feel pressure and discontent from him. Mr. Chavres [sic] made derogatory comments about age, such as: 'She's attractive for an older lady';
"d. Five of the six Account Executives hired in this time period under the new General Sales Manager and the new local Sales Manager were thirty-one years old or younger. Most of them had relatively little experience. One of the Account Executives hired was forty years old. The complainant was fifty-two years old at this time;
"e. The respondent did not provide the complainant with adequate training, particularly when she was first hired. The complainant's work was scrutinized closely. The respondent did not acknowledge the complainant's accomplishments in sales for the respondent. By mid-May 2000, she was required to report daily on all of her activities for the day. None of the younger workers were subjected to this treatment;
"f. A new Account Executive, who was twenty-three years old, was hired in June 2000. Within the week, the complainant was terminated, on or around June 29, 2000. The respondent's General Sales Manager, Francis Perdisatt, stated that the complainant was terminated because 'It just wasn't working'. The respondent terminated the complainant because of her age;
"g. The respondent discriminated against the complainant with respect to terms and conditions of employment, and termination because of her age;
"h. The respondent's discriminatory actions have caused the complainant to suffer a loss of income and other work related benefits." R. Ex. 2, Compl. and Notice of Hr'g at 2-3.

Thereafter, on October 2, 2002, a Complaint and Notice of Hearing issued regarding Bagnall's claims. Id. at 1-2. The Complaint alleged that Employer terminated Bagnall because of her age, causing her to lose income and other work-related benefits. Id. at 2-3.

A

Commission Hearings and Findings

The Commission held hearings on the matters set forth in the above Complaint before Commissioner Randolph Lowman on February 23, February 24, February 25, February 26, February 27, March 16, and March 17, 2004. The Commission bifurcated the hearing to address initially the issue of liability, not damages. Bagnall presented testimony from Eric Cahow (Cahow), the Director of Marketing and Community Relations for Neighborhood Health Plan of Rhode Island; Jeannette Ware (Ware), another Account Executive; and Karen Galbo (Galbo), Employer's Public Affairs Director. Employer presented testimony from various persons who worked with Bagnall, including Marti Breden (Breden), the Operations Manager; Perdisatt, the General Sales Manager; Joseph Charves (Charves), the Local Sales Manager; and Mathieu Couture (Couture), Jaclyn Fiore (Fiore), and Kathryn Mitson (Mitson), all Account Executives.

At the first hearing, Bagnall testified that she was born in 1947 and began working in advertising sales in 1971 in San Francisco. Tr. 31-32, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶¶ 1-2. Her first jobs in advertising were for various magazines in San Francisco and New York City; around 1979, she took a job in London selling American-manufactured products. Tr. 32-38, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 2. She returned to selling magazine advertisements in the United States from 1982 through 1989. Tr. 38-42, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 2. From 1990 through 1998, she owned a sales, marketing, and promotional company selling women's clip-on earrings. Tr. 45-46, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 2. In August 1998, she left her company and began selling radio advertising at Citadel Broadcasting Company (Citadel). Tr. 46-47, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 2.

Near the end of 1999, Employer's General Sales Manager, Corey Lewis (Lewis), approached Bagnall as a result of a referral by Cahow, one of her clients at Citadel. Tr. 49, Feb. 23, 2004; Tr. 14, Feb. 25, 2004; R. Ex. 1, Findings of Fact ¶ 3. After several interviews, Lewis offered Bagnall an Account Executive position on November 24, 1999. Tr. 56, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 4; Complainant's Ex. 4, Nov. 29, 1999. Her offer letter stated that Bagnall would receive a two- to three-week training period after which she would be given a list of current clients; her draw would be calculated based on commissions of $25, 000 per year; and she would have a three-month grace period in which her commissions did not need to equal her draw.[1] Tr. 65-66, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 4; Complainant's Ex. 4. Bagnall accepted the offer in mid-December 1999. Tr. 60, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 4. Later that month, after Bagnall had provided her two weeks' notice to Citadel, Lewis informed her that he would be leaving Employer for another job, and thus when she started at Employer she would not have a manager or an account list. Tr. 67-68, Feb. 23, 2004; Tr. 34-35, Feb. 24, 2004; R. Ex. 1, Findings of Fact ¶ 5. Bagnall testified that she did not believe Lewis' departure from the station had anything to do with her age. Tr. 35, Feb. 24, 2004.

Bagnall began working for Employer on January 3, 2000 as an Account Executive. Tr. 68, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 6. During her first month of work, Employer did not have a General Sales Manager and, thus, Bagnall received minimal supervision and training. Tr. 71-80, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 8. She eventually received at least sixteen hours of computer training in the Employer's Providence and Boston offices, some of which occurred after business hours. Tr. 42-46, 111, Feb. 24, 2004; R. Ex. 1, Findings of Fact ¶ 23. Breden, Employer's Operations Manager, testified that he gave Bagnall more training on computer programs than he gave other Account Executives because she did not understand the system and was, in his opinion, difficult to train. Tr. 30-31, 34, Feb. 25, 2004. He estimated that he gave her roughly forty hours of training. Id. at 30.

Partly because of the circumstances of her hire and the resulting lack of initial training, John Satterfield (Satterfield), the General Manager in Boston, Massachusetts, agreed to increase Bagnall's draw to $30, 000 per year at the end of her first month. Tr. 117, Feb. 23, 2004. At the end of her first month, Satterfield gave Bagnall an account list. Id. at 79-80; R. Ex. 1, Findings of Fact ¶ 9; Complainant's Ex. 6. Bagnall testified that the list was not as lucrative as it first appeared; some accounts were owed "free time" from Employer because of poor audience ratings for their previously-aired advertisements; and others had posted substantial business in 1999 for product launches that would not be repeated in 2000. Tr. 81-82, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 9.

Perdisatt began working as General Sales Manager with Employer in late-January 2000. Tr. 79, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 10. He was fifty-one when he began working for Employer. Tr. 42, Feb. 25, 2004; R. Ex. 1, Findings of Fact ¶ 10. He was hired to increase Employer's share of business in the Providence market and to coordinate Employer's local and national business efforts. Tr. 43, Feb. 25, 2004; R. Ex. 1, Findings of Fact ¶ 11. In his first two weeks with Employer, Perdisatt met with Bagnall a "couple" of times for short training sessions about television advertising. Tr. 88, Feb. 23, 2004; Tr. 86-87, Feb. 25, 2004. Perdisatt testified that new business "was of maximum importance to every account executive at the station" because Channel 28 was so new in the state. Tr. 47, Feb. 25, 2004. He also testified that during sales meetings he made clear to his Account Executives that new business was "a top priority." Id. at 52.

Charves began working as Local Sales Manager with Employer in mid-February 2000. Tr. 87, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 10. He was twenty-eight when he began working for Employer. Tr. 4, Feb. 26, 2004; R. Ex. 1, Findings of Fact ¶ 10. Charves was hired to manage the local sales team and to increase Employer's revenue and market share. Tr. 7, Feb. 26, 2004. Charves testified that when he started working for Employer his primary goal for the sales department was to "build new agency business." Tr. 8, Feb. 26, 2004. Perdisatt asked Bagnall to report directly to Charves after he joined the company. Tr. 89-90, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 12.

Bagnall testified that Charves made several age-based comments in her presence. Tr. 100-07, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 13. First, Bagnall testified that the prime time programming at the station skewed towards a younger audience, and Charves made statements that were dismissive of advertising during programming that was addressed towards an older audience. Tr. 100-02, Feb. 23, 2004. In particular, Bagnall testified that Charves said to "forget about" advertisers targeting older audiences because "[t]hey only want old people." Id. at 102. In addition, Bagnall testified that following a meeting with a representative of an advertisement agency, Charves noted that the representative was "really attractive for an older lady." Id. at 104. Charves also stated once that it would be "cool" if his sales staff was the same age as the young audience for prime-time programming on Channel 28. Id. at 105, R. Ex. 1, Findings of Fact ¶ 13. When Bagnall expressed her discomfort at this statement, Charves laughed and told her that she could sell "Judge Judy, " which had an older audience. Tr. 106-07, Feb. 23, 2004; R. Ex. 1, Findings of Fact ¶ 13. Bagnall did not report these disparaging comments regarding age to Human Resources. Tr. 97-98, Feb. 24, 2004; R. Ex. 1, Findings of Fact ¶ 14.

Bagnall also testified that Charves treated her differently than the Account Executives he hired, who were in their twenties or thirties. Tr. 133, Feb. 23, 2004. She stated that other employees had "constant access" to Charves and she believed that they were assigned more active business. Id. at 134. Bagnall testified that Charves treated her disrespectfully in sales meetings and invited other Account Executives to social gatherings every few weeks while excluding Bagnall. Tr. 143, Feb. 24, 2004; R. Ex. 1, Findings of Fact ΒΆ 12. In addition, Bagnall testified that other ...


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