Ex-reporter Jerry Sander loses lawsuit against WKYT

ssloan@herald-leader.comApril 19, 2012 

Former WKYT reporter Jerry Sander Photo courtesy Jerry Sander

PHOTO COURTESY JERRY SANDER — Photo courtesy Jerry Sander

Former television news reporter Jerry Sander has lost an appeal of his lawsuit against former employer WKYT, Lexington's CBS affiliate.

In a ruling Wednesday, the Sixth Circuit U.S. Court of Appeals ruled 2 to 1 in favor of WKYT's parent company. The ruling affirmed a previous one by federal district judge Karl Forester that Sander voluntarily quit after a meeting in February 2008.

Sander had sued, alleging he had not quit and that WKYT used his actions to terminate him for other reasons, including his age.

At issue was a morning meeting in which Sander, now 65, was assigned to produce stories for WKYT's Web site and it was suggested that he help manage SnoGo, which notified viewers of schools and business closings because of snow.

In front of the station's morning news meeting, Sander said he couldn't do SnoGo, as "I wouldn't know how to even start, what button to push. I have absolutely no training in this. I don't know how to do it, and I won't do it," according to the ruling.

After an exchange with news director Robert Thomas, Sander said he was feeling ill and would go home. Before leaving, though, he told multiple employees that he was either "going to quit" or "I'm quitting," according to depositions given in the case.

He also told Thomas that he now had Sander's salary to use. Sander was the station's highest-paid reporter, earning in the mid- to upper $80,000 range as part of an eight-year deal signed in 2005 with previous news director Jim Ogle. Sander's pay would have topped out at $96,510 in 2012, according to case documents.

"Sander's own words and actions support the district court's determination that Sander voluntarily terminated his employment," the Court of Appeals judges wrote in the ruling, which granted summary judgment in favor of WKYT's parent company instead of allowing the case to go to a civil trial.

Although Sander attempted to excuse his conduct by saying he was suffering extreme emotional distress, the judges wrote that Forester was correct in ruling that an employee "is not entitled to walk out on a job merely because he cannot control his temper."

Sander met with Thomas and WKYT general manager Wayne Martin four days after the incident and was told after that meeting that the station had decided to accept his resignation and would offer him a severance with a signed statement of release. Sander, who had worked for the station since 1981, declined the severance offer and sued the station later that fall.

"We're thinking about an appeal," said Randy Freking, an attorney for Sander. "It's a pretty unfortunate decision from the court that seems to be chipping away at people's constitutional right to a trial by jury. "I think these judges are acting as if they are the jury, and they have no ability whatsoever to gauge whether the company witnesses are telling the truth or not."

WKYT officials declined to comment Thursday.

In the suit, Sander also had claimed that the station discriminated against him because of his age, and he claimed that other veteran news staffers were treated that way. The judges rejected that view, saying that even if he could prove that age discrimination might have occurred, "he cannot credibly argue that it was his age, and not his refusal to complete a routine work assignment, that led to his termination."

In a dissenting opinion, Senior Judge Gilbert Merritt wrote that there was "persuasive proof that might well convince a jury" that the station's defense that Sander quit was "a cover for management's decision to get rid of Sander for other reasons."

In his opinion, he cited a deposition of Thomas, in which the news director said he knew Sander did not intend to quit.

Merritt also wrote that there was evidence of age discrimination, including that the station hired Tamara Evans, a reporter in her 20s, after Sander's departure. He cited, too, Sander's testimony that Thomas frequently asked him when he planned to retire and referred to him as "old school," "old fashioned" and "old." The latter was corroborated, according to the ruling, by former reporter Denny Trease, who left the station in 2009 "because we were unable to work out a suitable contract agreement," he told the Herald-Leader at the time.

"The case should go to the jury on this issue," Merritt wrote, adding that it should be up to a jury to decide whether WKYT's defense that Sander quit "was a smoke screen to hide Thomas' decision to discharge Sander because he was too ‘old' and too ‘old fashioned' to present a young and attractive face to the WKYT viewing public."

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