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A federal judge has refused to dismiss a Title VII suit against Comcast Corp. brought by an African-American woman who claims she was denied a job as an anchor on the “CN8 News” due to her race and her participation in a prior discrimination suit against QVC home shopping channel. In her 10-page opinion in Owens v. Comcast Corp., U.S. District Judge Petrese B. Tucker concluded that a jury must decide whether race or retaliation played a role in Comcast’s decision not to hire Gwen Owens for the anchor position because Owens has evidence that casts doubt on Comcast’s proffered reason. The ruling is a victory for plaintiff’s attorneys William H. Ewing of Eckert Seamans Cherin & Mellott in Philadelphia and Alan J. Rich and Baree N. Hassett of the Law Offices of Alan J. Rich in New York. In their brief, the plaintiff’s lawyers argued that a jury could reject Comcast’s claim that Owens was denied the job purely on the merits of her qualifications due to “inconsistencies” in testimony from Comcast management. The plaintiff’s team argued that while Comcast claims it was looking for good “chemistry” between its co-anchors, the evidence shows that it hired Arthur Fennel, an African-American man, without any audition, and later offered the post of co-anchor to two white women without having them audition with Fennel. “While David Shane, who oversaw Comcast’s transition committee for the new CN8 news, stated that all the anchor candidates were interviewed and auditioned — thus suggesting that the choices were based on merit — it is apparent that Comcast did not follow this process and lied about it,” the plaintiff’s team wrote in its brief. Tucker found that such evidence could support a jury’s verdict in Owens’ favor. “A reasonable jury could choose to disbelieve Comcast’s account of the process. If a jury doubts the process, they could find pretext under these facts,” Tucker wrote. In the suit, Owens claims that Comcast’s decision not to hire her for the anchor post — but instead to offer her a reporter position — was motivated by racism and retaliation against her for filing a race discrimination suit against QVC, the West Chester, Pa. based home shopping channel. QVC was a subsidiary of Comcast at the time Owens worked there. Owens’ case against QVC went to trial earlier this year, but ended with only a partial verdict. The jury declared that it was deadlocked on Owens’ race claims against QVC over its decision to fire her in 1998, but awarded her $68,000 on her claim that she was paid less than a comparable male host. QVC nonetheless won a few significant points in the jury’s partial verdict. The jury found that race was not a factor in Owens’ assignments at QVC, and also rejected her allegations that QVC retaliated against her for filing the discrimination lawsuit or discriminated against her because of her gender. But on Owens’ central claim — that she was fired because of her race — the jury could not agree on a verdict. U.S. District Judge Eduardo C. Robreno has not yet ruled on post-trial motions in the QVC case. In the suit against Comcast, Owens claims that her lawsuit against QVC played a role in Comcast’s decision not to hire her for the anchor position at CN8 after it acquired Tri-State Media, another cable news operator. Owens had been hired by TSM and once again became a Comcast employee when it purchased TSM. According to the suit, TSM discontinued its news broadcasts in February 2000 and began plans to merge the TSM news operation into CN8, a Comcast station. Owens claims that when she interviewed for the CN8 evening news anchor position with members of a “transition committee,” she disclosed the fact that she was a party to the QVC suit. She claims the interviewers assured her that the QVC lawsuit would not be considered in their decision. But Owens claims that race and retaliation ultimately did play a role in Comcast’s decision. Once Fennel was hired, Owens claims that Comcast did not want to hire a second African-American anchor. Instead, she said, Comcast offered the post to two white women — Kristine Sorensen, a news anchor and reporter from Pittsburgh who was not able to accept the offer because of her contract; and Kristen Page, an evening news anchor for a CBS news affiliate in Harrisburg. Page accepted the offer but was not able to start at the time Comcast planned to launch the CN8 news broadcast. As a result, Comcast offered a temporary anchor position to Grace Hargis, a former news anchor for a CBS affiliate in Orlando, Fla. Comcast offered Hargis a permanent position, allegedly based on her performance with Fennell, and rescinded Page’s offer. But Comcast was forced to renew its search for an anchor in December of 2000 when Hargis resigned. Ultimately, Comcast hired Connie Colla, a former anchor on the Philadelphia NBC affiliate. Owens also claims that she was rejected for several other positions at CN8. In January 2003, Comcast opened a position for a host of a morning show as well as a mid-day news anchor. After reviewing several audition tapes, Comcast chose eight finalists, but Owens was not among them. Owens continues to work for Comcast as a reporter and a backup anchor for the evening news broadcasts. Comcast’s lawyers — Michael J. Ossip and Michael J. Eagles of Morgan Lewis & Bockius — moved for summary judgment, arguing that Owens cannot meet her burden of proving that either race or retaliation played any role in the decision to pass her over for the anchor post. In their brief, the defense lawyers argued that Comcast offered the co-anchor positions to Sorensen and Page “due to their superior auditions and recent anchoring experience on major network affiliates.” Owens was simply speculating, the defense lawyers argued, when she claimed that Comcast did not select her as a co-anchor because of her race once it hired Fennell. Her testimony on that point was “mistaken,” they said, because it “assumes that Comcast decided not to offer her a co-anchor position after it hired Mr. Fennell.” In reality, the defense team argued, by the time Fennell was hired, Owens “had not been in the running for the co-anchor position for several weeks.” Since Comcast made the decision not to offer Owens a co-anchor position before it hired Fennell, they said, “there is no evidence that Comcast’s selection of Mr. Fennell had anything to do with Ms. Owens’ race.” But the plaintiff’s lawyers argued that the evidence of the process used in the hiring of Fennel and the white women showed that Comcast was retaliating against Owens for suing QVC and discriminating against her on the basis of race. “Comcast haphazardly assembled an anchor ‘team’ in a rush,” the plaintiff’s team wrote in its brief. Fennell, they said, testified that he never even applied for the job and never auditioned, but instead received an unsolicited offer “out of the blue.” The evidence also showed, they said, that the white women who were offered the post of co-anchor were never auditioned with Fennell to test their chemistry. “Auditioning co-anchors is commonplace in a business where chemistry between co-anchors is crucial to broadcast success. Failing to do so is unheard of in this business,” the plaintiff’s lawyers argued. The plaintiff’s team noted in their brief that David Shane, the head of Comcast’s CN8 transition team, “testified that anchor candidates were tested together to ensure their on-air chemistry. However, they were not.” Owens was shut out of consideration, the plaintiff’s team argued, because Comcast did not want an all African-American anchor team. “Once an African-American male anchor was chosen, Owens would never be considered for the co-anchor spot. Since Mr. Fennell was hired, all co-anchors Comcast has hired have been blond Caucasian women,” the plaintiff’s lawyers wrote. Tucker rejected Comcast’s summary judgment motion and concluded that Owens is entitled to a jury trial because her evidence could cast “substantial doubt” on Comcast’s explanation for its hiring decisions. Although Comcast claims it rejected Owens because her audition was “forced and mechanical,” Tucker found that Comcast lacks evidence to support its interpretation of the live auditions. “Based on the record, a jury could find that Owens’ performance during the auditions was not a factor in the decision and conclude that Comcast’s unsupported evaluation was a pretext for discrimination or retaliation,” Tucker wrote.

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