UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

 

Peter LAUFER

v.

WWRC RADIO, et al.

No. CCB-94-3500

March 6, 1996

1996 WL 1061504 (D.Md.)

 

MEMORANDUM

COUNSEL:

Daniel F. Rinzel, Karin M. Grane, Leonard, Ralston, Stanton & Danks, Washington, DC, for Plaintiff.

Lorence L. Kessler, Carl J. Hartmann, III, New York, NY, of counsel to the firm; Mauro Morales of McGuinness & Williams, Washington, DC, for Defendants.

BLAKE, J.

Now pending is the defendants' motion for summary judgment as to Counts I, III, and VI. [FN11] The motion will be granted.

Count III alleges that the plaintiff's written one-year employment contract of February 21, 1993 was continued after February 21, 1994 as an oral contract, either (1) by express agreement or (2) automatically by continuation of performance. The claim of an express contract, however, cannot succeed because of the undisputed failure of the parties to agree on several important terms. See Klein v. Weiss, 395 A.2d 126, 141 (Md.1978). Accepting the plaintiff's version as true, Mr. Longwell, the new station manager, met with Mr. Laufer on February 21, 1994 and offered to have him continue working on the same terms and conditions after that date. Mr. Laufer then requested several "points" in addition to the "renewal" of the contract, which Mr. Longwell thought would be "no problem" but had to be confirmed by Mr. Banta in New Jersey. (Laufer Dep. at 121-23). Mr. Laufer concedes there was no agreement as to the base salary, bonus incentives, a severance period, or "notice pay." Id. at 109-11. Even assuming the defendants made a firm offer of renewal on the same terms and conditions as the 1993-1994 contract, Mr. Laufer did not accept it. Rather, he made a counteroffer, which operates as a rejection of the offer. Learning Works, Inc. v. The Learning Annex, Inc., 830 F.2d 541, 543 (4th Cir.1987). Nor can it be said that the original contract was renewed by operation of law simply because the plaintiff continued to work while negotiations were ongoing.

Continuation of performance and payment, without objection, after the term of a written contract has expired may create an inference that the parties have assented to another contract on the same terms. See Kropfelder v. Snap-On Tools Corp., 859 F.Supp. 952, 954 (D.Md.1994). In this case, however, the undisputed fact that negotiations on key terms of the contract were underway negates the claim that the parties intended to continue performance under the terms of the original contract. Consolidated Bearings Co. v. Ehret-Krohn Corp., 913 F.2d 1224, 1230 (7th Cir.1990). Accordingly, Mr. Laufer cannot prevail on Count III.

Counts I (Title VII) and VI (Montgomery County Human Rights Ordinance) allege retaliatory discharge. On March 22 or 24, 1994, Mr. Reese, a sales manager, allegedly made a racial statement suggesting that Mr. Holmes, an African- American radio talk show host, should be fired. Mr. Laufer, a white male, then called a meeting to discuss Mr. Reese's remarks. Shortly thereafter, Mr. Longwell told Mr. Laufer he had mishandled the incident. On March 31, 1994, Mr. Laufer was fired by Mr. Longwell. Mr. Holmes was not fired. To prove a prima facie claim of retaliatory discharge, Mr. Laufer must show (1) that he engaged in a protected activity; (2) that the employer took adverse action against him; and (2) that there was a causal connection between the protected activity and the adverse action. See Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir.1989); Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985). Mr. Laufer has difficulty establishing the first of the three prongs.

Whether Mr. Reese's remarks constitute an "unlawful employment practice," for opposing which Mr. Laufer may not be fired, is unclear. Mr. Reese, who had himself been demoted by Mr. Longwell, did not have the authority to fire Mr. Holmes, although Mr. Laufer did. Mr. Reese's statement is similar to the co-worker's racial slur found not to constitute an unlawful employment practice of the employer in Silver v. KCA, Inc., 586 F.2d 138, 142 (9th Cir.1978); see also Blizzard v. Newport News Redevelopment and Housing Auth., 670 F.Supp. 1337, 1343 n. 5 (E.D.Va.1984).

*2 Assuming that the plaintiff has proven a prima facie claim, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the discharge. Ross, 759 F.2d at 365. The ultimate burden of proving the employer's intentional discrimination always rests upon the plaintiff. Saint Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2747 (1993).

In this case, the defendants have shown that during Mr. Laufer's tenure as the program director at WWRC, the station's audience ratings deteriorated, thereby decreasing its profitability. WWRC's average ratings level in 1993 was the weakest year in the station's Arbitron history. (Defs.' MSJ, Ex. 4 at 9). Mr. Longwell was hired in 1994 to improve the ratings. Moreover, according to the affidavit of Mr. Milewski, the executive vice-president and chief operating officer of Greater Media, Inc., he told Mr. Longwell on March 30, 1994 to fire Mr. Laufer as soon as possible. Mr. Milewski further swore he was not aware of the Reese/Holmes incident as of March 30, 1994. Mr. Laufer's internal memos and affidavit show he conducted a conference call concerning firing Mr. Laufer on March 4, 1994 and wrote two memos, one dated March 7, 1994, the other dated March 17, 1994, regarding the plaintiff's replacement. Both memos were written prior to the incident with Mr. Reese. (Defs.' MSJ, Ex. 5). Accordingly, the plaintiff cannot rebut the legitimate reasons offered for his discharge, or establish causation, and therefore cannot prevail on Counts I and VI.

A separate Order follows.