Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-26-2003

McNulty v. Citadel Broadcasting
Precedential or Non-Precedential: Non-Precedential

Docket 01-3902




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                                                           NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                  Nos. 01-3902 and 01-4046


                 ANTHONY A. MCNULTY

                              v.

         CITADEL BROADCASTING COMPANY,
                      Appellant No. 01-3902


                 ANTHONY A. MCNULTY,
                        Appellant No. 01-4046

                              v.

          CITADEL BROADCASTING COMPANY


          Appeals from the United States District Court
              for the Middle District of Pennsylvania
                   (D.C. Civil No. 98-cv-01112)
       District Court Judge: Honorable A. Richard Caputo


                Argued December 17, 2002
Before: SLOVITER, RENDELL and GREENBERG, Circuit Judges.

                  (Filed: February 26, 2003)


                                   John J. Meyers, Esq. [ARGUED]
                                   Eckert, Seamans, Cherin & Mellott
                                   600 Grant Street, 44th Floor
                                   Pittsburgh, PA 15219
                                      Counsel for Appellant/Cross Appellee
                                   Joseph P. Dailey, Esq. [ARGUED]
                                                          Dailey & Selznick
                                                          405 Lexington Avenue
                                                          Chrysler Building, 54th Floor
                                                          New York, NY 10174
                                                            Counsel for Appellee/Cross Appellant

                                             ____________

                                      OPINION OF THE COURT


RENDELL, Circuit Judge.

        Anthony McNulty worked as a broadcaster at a radio station owned by Citadel

Broadcasting Company (“Citadel”) until 1998. The circumstances surrounding his

termination led to McNulty’s filing age discrimination and disparagement claims against

Citadel. The age discrimination claims went to a jury, who found in favor of McNulty. The

disparagement claims were disposed of on summary judgment for Citadel. Citadel now

appeals the District Court’s order denying its motion for judgment as a matter of law or in

the alternative for a new trial on the age discrimination claims. McNulty appeals the

District Court’s grant of summary judgment for Citadel on his disparagement claims. We

will affirm the District Court’s denial of judgment as a matter of law on the age

discrimination claims. However, because we find that testimony from several witnesses

giving their views with respect to a promotional liner was improperly admitted and an

improper jury instruction was given at the trial on McNulty’s age discrimination claims, we




                                                     2
will reverse the District Court’s denial of a new trial, and grant a new trial.1 Finally,

because we find that McNulty has failed to show any actual harm from Citadel’s statements

surrounding his termination, we will affirm the District Court’s grant of summary judgment

to Citadel on the disparagement claims.

                                 I. Jurisdiction and Standard of Review

        The District Court had jurisdiction over McNulty’s claims under 29 U.S.C. §

626(c)(1) (1998) and 29 U.S.C. § 1331 (1998). We exercise jurisdiction over the District

Court’s final orders under 28 U.S.C. § 1291 (2002). We review the District Court’s denial

of Citadel’s motion for judgment as a matter of law de novo, Paolella v. Browning-Ferris,

Inc., 

, 189 (3d Cir. 1989), and the District Court’s denial of Citadel’s motion

for a new trial for abuse of discretion, reviewing the Court’s interpretation of law de novo.

Rotondo v. Keene Corp., 

, 438 (3d Cir. 1992). We review the District

Court’s grant of summary judgment de novo. Green Mach. Corp. v. Zurich-American Ins.

Group, 

, 839 (3d Cir. 2002). We apply the same standard to summary

judgment as the District Court, that is, whether there remain any genuine issues of material

fact such that a reasonable jury could return a verdict for McNulty. Fed. R. Civ. P. 56(e).

                                              II. Background




        1
         McNulty was awarded attorney’s fees as the prevailing party; both parties appeal the
amount. McNulty also claims error regarding the submission of front pay to the jury.
Because we will grant a new trial, McNulty is no longer the prevailing party. We will
therefore vacate the award. In light of this disposition, the claims of error regarding the fee
award and front pay are moot.

                                                      3
        A complete understanding of the facts is helpful. Anthony McNulty worked as a

broadcaster at radio station WARM in the Scranton-Wilkes Barre area from 1960 to 1998.

During that time, McNulty held a number of on-air positions, including disc jockey,

newscaster, talk show host, and public affairs announcer. In 1991 he became the host of the

morning drive-time show. Prior to 1997, WARM was owned by Susquehanna Broadcasting

Company and had a target audience of adults in the 35-to-65 age group. In 1997, WARM

was sold to Citadel. At the time of the sale, the ratings and audience share for all WARM

broadcasts were in decline.

        Citadel management decided to target a younger demographic, the 25-54 age group.

Citadel hired an independent consultant, Brian Jennings, to review programming and make

recommendations on how to improve WARM’s ratings with the new target audience. In

August 1997, after listening to broadcast tapes, but prior to meeting with any broadcasters

in person, Jennings prepared an evaluation. In the section in which he evaluated McNulty’s

morning show, Jennings stated,

        “The whole station sounds OLD, VERY OLD. It needs a complete makeover.

        [McNulty] will attract 65+, but very little else. I think his humor is old. . . .

        Terry doesn’t sound old in vocal quality, but his manner and on-air

        persona/personality do sound very old.”

In other sections in the memo, not related to McNulty’s show, Jennings notes that the

callers who like the shows are very old, and that other program hosts spend too much time

talking about George Burns and other “old geezers.” In summary, Jennings recommended a

                                                      4
drastic makeover, including bringing an “older staff” into the 90's.

        On Jennings’s recommendation, Citadel hired a new Program Director, Gregory

Foster. Foster made a number of changes in McNulty’s show, but was complimentary

overall and never questioned McNulty’s performance. In mid-February 1998, Foster told

McNulty that his show was doing “fine.”

        In February 1998, Jennings returned to re-evaluate WARM’s progress. Discussing

the morning drive show, Jennings stated,

        “Terry is still the question mark. He sounds like he’s 62. He doesn’t have a

        25-54 mindset and it’s difficult for him to relate to this demographic. Little

        old ladies love him. . . . We either need a younger host who is hungry to

        succeed, or investigate another option all together. I believe Don Imus would

        be killer in this market, and, I would encourage you to investigate this

        option.”

In the same memo, Jennings evaluated two other on-air hosts, both aged 50, and concluded

that they had improved.

        At the end of February, McNulty met with Foster and William Betts, WARM’s

General Manager, and was told he was being taken off the air and that his show was being

replaced by the Imus in the Morning show. At the meeting, McNulty was given three

options, including a sales position. McNulty rejected these offers and told management that

he would only consider broadcasting jobs at his previous salary and benefits level, that were

comparable to the positions he had held over the preceding 20 years. WARM did not make

                                                     5
any further offers, and McNulty’s employment was formally terminated in March 1998,

when he was 61 years old.

         Around the same time, WARM made a number of other changes in its line-up. For

example, one broadcaster was taken off the mid-morning show and placed in the afternoon

when his time slot was given over to a syndicated program, then later switched back to the

morning show, a news-caster was taken off the morning news and placed on the afternoon

news, and a sports announcer was taken off sports in the morning and put on sports later in

the day. All of these broadcasters were younger than McNulty.

         There was a good deal of publicity surrounding the changes at WARM. News of

McNulty’s termination appeared in a number of newspaper articles and on the local

television news immediately thereafter. The news stories quoted Foster as explaining that

WARM had sagging ratings and was targeting a younger audience. After McNulty’s show

was replaced by the Imus show, WARM played a series of promotions for the new show

based on callers’ comments. Some of these caller comments were positive about the

changes on WARM and some were negative; a few directly referenced McNulty. During

the morning time slot, WARM also played a short promotional announcement, called in the

industry a “liner,” that stated, “W.A.R.M. We’re not just for shut-ins anymore.” (the “shut-

ins liner”).

         In April 1998, McNulty filed discrimination charges under the Age Discrimination

in Employment Act (“ADEA”) with the Equal Employment Opportunity Commission

(“EEOC”) and state charges under the Pennsylvania Human Relations Act (“PHRA”) with

                                                   6
the Pennsylvania Human Rights Commission (“PHRC”). In July 1998, McNulty filed a

claim in the District Court for the Middle District of Pennsylvania under the ADEA for age

discrimination. McNulty also included a number of disparagement claims. He advised the

PHRC that he had filed a federal claim but did not ask the state agency to take any action.

In September 1998, the PHRC sent a form letter to McNulty stating that it had closed his

file because he had commenced a civil suit, and that he was free to sue under the PHRA. In

November 1998, McNulty added a state PHRA age discrimination claim to his federal suit.

        Citadel moved for summary judgment on all counts, which was granted as to the

disparagement claims but denied as to the age discrimination claims. At trial on the age

discrimination claims, McNulty played the “shut-ins” liner and presented numerous listener

witnesses who testified that they only heard the liner after McNulty had been fired, and that

they believed the liner was offensive, referred to McNulty, and meant that he was too old to

be on the radio.

        In its instructions to the jury, the Court advised that in order for the jury to find age

discrimination in a case such as this where there was circumstantial but not direct evidence

of discrimination, it must find that “Mr. McNulty’s age was a motivating or determinative

cause of Citadel’s decision to discharge or terminate him.” (emphasis added). The Court

went on, “Or to state the third requirement differently, that Mr. McNulty’s age played a role

in Citadel’s decision-making process and had a determinative affect (sic) on the outcome

of that process.” The Court later reiterated, “The third of the requirements I just mentioned

will be satisfied if Mr. McNulty proves that age was a motivating or determinative

                                                      7
consideration that made a differences (sic) in Citadel’s decision.” Finally, the Verdict Slip

given to the jury asked, “Was Plaintiff’s age a motivating or determinative factor in the

employment actions which Defendant took with regard to Plaintiff?”

        The jury returned a verdict for McNulty. Citadel renewed its motion for judgment

as a matter of law and moved alternatively for a new trial. The District Court denied both

motions.

                                              III. Discussion

A.      Age Discrimination Claims

        Because we find that Citadel has not shown as a matter of law that McNulty’s age

discrimination claims have no merit, we will affirm the District Court’s denial of judgment

as a matter of law. We will, however, grant a new trial, as we find that the District Court

erred in admitting the witness testimony on the effect of the “shut-ins” liner, that the

Court’s instructions on the requirements of a “pretext” case were erroneous, and that

neither of these errors was harmless.

        1. Judgment as a Matter of Law

           Citadel has not shown that McNulty’s claims of age discrimination fail as a matter

of law. Although McNulty cannot show direct evidence of discrimination, the

circumstantial evidence he presents is enough to allow a reasonable juror to find in his

favor. While it is clear that making a decision to target a younger audience is not in itself

age discrimination, see, e.g., DeLoach v. Infinity Broadcasting, 

, 401 (7th Cir.

1999) (finding no age discrimination at radio station that changed from music-based

                                                      8
programming to a syndicated talk radio format to attract younger audience); Bills v.

Sunshine Wireless Co., 

, 61 (E.D. Va. 1993), aff’d in an unpublished

opinion, 

(4th Cir. 1994) (holding that evidence a radio station

was targeting a younger audience did not amount to evidence that it fired an announcer

because of his age), we find that there were sufficient references to McNulty’s age and an

atmosphere of bias against the elderly that, while not direct evidence of discrimination,

could support a jury verdict.

           The ADEA prohibits an employer from discharging an employee “because of [his]

age.” 29 U.S.C. § 623(a)(1) (2002). Liability depends on “whether the protected trait

actually motivated the employer’s decision.” Reeves v. Sanderson Plumbing Products, Inc.,

, 141 (2000). “That is, the plaintiff’s age must have ‘actually played a role in

[the employer’s decision-making] process and had a determinative influence on the

outcome.’” 

Paper Co. v. Biggins, 

, 610 (1993)). An ADEA

plaintiff can meet his or her burden of proof by 1) presenting direct evidence of

discrimination that meets the requirements of Justice O’Connor’s controlling opinion in

Price Waterhouse v. Hopkins, 

(1989) (where the employment action was

allegedly motivated by a combination of legitimate and illegitimate motives), or 2)

presenting indirect evidence of discrimination that satisfies the familiar three-step

framework of McDonnell Douglas Corp. v. Green, 

(1973) (where plaintiff

relies on the inferences that an be drawn from the prima facie case). See Fakete v. Aetna,

Inc., 

, 337-38 (3d Cir. 2002). This case proceeded under the McDonnell

                                                      9
Douglas framework, also known as a “pretext” case.

           In support of his argument that there is sufficient evidence to support the jury’s

verdict, McNulty contends that he introduced direct evidence of discrimination. Direct

evidence means “evidence sufficient to allow the jury to find that the ‘decision makers

placed substantial negative reliance on [the plaintiff’s age] in reaching their decision’ to fire

him.” 

(quoting Connors v. Chrysler Fin. Corp., 

, 976

(3d Cir. 1998)). “Such evidence ‘leads not only to a ready logical inference of bias, but

also to a rational presumption that the person expressing bias acted on it’ when he made the

challenged employment decision.” 

v. Westinghouse Elec. Corp., 

, 1097 (3d Cir. 1995)). Recently, in Fakete, we held that a statement by the

person who was responsible for firing the plaintiff that he was “looking for younger single

people” and that the plaintiff “wouldn’t be happy [at Aetna] in the future,” was sufficient to

allow a reasonable jury to find that the plaintiff’s age was more likely than not a

determinative factor in the decision to fire him. 

simply no such evidence here. McNulty argues that he presented four

pieces of direct evidence of age discrimination: 1) Jennings’s memo recommending that

Citadel hire a “younger host;” 2) the “shut-ins” liner; 3) a statement that Foster made to a

newspaper saying that WARM was “targeting a younger audience;” and 4) that Foster

reprimanded him for opposing a promotion referring to older listeners as “old biddies.”

However, as we have noted, changing a target audience does not in itself amount to age

discrimination, and McNulty has not directly connected the statements he relies upon to his

                                                        10
termination; on their own, they do not lead to the rational presumption that any expressed

bias was acted on.

           McNulty has, however, presented sufficient circumstantial evidence to allow a

reasonable jury to find in his favor. Because we review the evidence after a jury verdict, we

do not concern ourselves with the McDonnell Douglas burden shifting analysis, but

proceed to the ultimate issue of whether McNulty has proven by a preponderance of the

evidence that age was a determinative factor in his termination. Billet v. Cigna Corp., 

, 817 (3d Cir. 1991). See United States Postal Service Brd of Governors v.

Aikens, 

, 714 (1983) (“Because this case was fully tried on the merits, it is

surprising to find the parties and the Court of Appeals still addressing the question of

whether Aikens made out a prima facie case. We think that by framing the issue in these

terms, they have unnecessarily evaded the ultimate question of discrimination vel non.”).

In so doing, however, our inquiry into the sufficiency of the evidence does not differ

markedly from inquiring into whether McNulty has submitted evidence sufficient to

establish the elements of a prima facie case and then sustained his burden of proving that

Citadel’s reasons were a mere pretext, see Bruno v. W.B. Saunders Co., 

, 764

n.2 (3d Cir. 1989).

           Taken in the light most favorable to McNulty, the evidence as outlined above is

sufficient to convince a reasonable fact-finder that similarly situated younger employees

were transferred rather than terminated, that age bias animated his termination, and that

Citadel’s explanation that McNulty was fired because of sagging ratings was a pretext.

                                                    11
McNulty presented evidence that younger broadcasters were transferred, rather than

terminated, that he himself had been transferred among various positions during his tenure

at the station, that his ratings were no worse than other broadcasters at WARM, and that

there was an atmosphere of bias against older people. We will therefore affirm the Court’s

denial of judgment as a matter of law for Citadel.2

        2. New Trial

             Although we will not grant Citadel judgment as a matter of law, we will grant a

new trial because we find that the erroneous admission of witness testimony about the

meaning of the “shut-ins” liner and erroneous jury instructions prejudiced Citadel.

            a. The “shut-ins” liner

               Citadel challenges the admission of the liner as well as the testimony about it.

The District Court admitted the liner over Citadel’s objections because it found the liner

relevant under Federal Rule of Evidence 402 to the issue of age-based animus, even if it

only referred to the station’s audience and not McNulty. See Fed. R. Evid. 402. This was

not an abuse of discretion. Further, the Court found that the liner was “at least as probative


        2
           Citadel also argues that judgment as a matter of law should have been granted on
McNulty’s age discrimination claim under the PHRA because he did not exhaust his state
administrative remedies before adding the claim to his federal claim. This argument is
without merit, as McNulty did not file his state claim until after he had received a letter
from the PHRC stating that it had closed his case and he was free to file a claim in court.
As the District Court notes, McNulty never asked the PHRC to transfer or close his file, as
was the case in the many state cases Citadel relies on. The PHRC apparently has a policy of
closing cases when civil complaints are filed and allowing the complainant to pursue their
action in court. Therefore, McNulty abided by the state exhaustion rules and was free to
file his claim.

                                                      12
as it is prejudicial,” and therefore was not barred by Rule 403, which decision was also not

an abuse of discretion. See Fed. R. Evid. 403.

             However, the Court allowed numerous WARM listeners to testify not only as to

when they first heard the liner – relevant to the disputed factual issue of when the liner was

first played – but also as to what they thought it meant. McNulty offered a parade of

witnesses, eleven in number, who testified that they did not hear the liner until after

McNulty was taken off the air, and also discussed their outrage at hearing the liner, and

their belief that the liner meant WARM thought McNulty was too old and that he, like the

audience, was a “shut-in.”3

             Under Rule 701, non-expert opinions are “limited to those opinions or

inferences which are . . . (b) helpful to a clear understanding of the witness’ testimony of

the determination of a fact in issue.” Fed. R. Evid. 701. An opinion is only helpful to the

jury “if it aids or clarifies an issue that the jury would not otherwise be as competent to

understand.” Lauria v. N’tl RR Passenger Corp., 

, 600 (3d Cir. 1998).

             We agree with Citadel that the testimony as to the meaning of the liner was

erroneously admitted. The listeners’ testimony as to when they first heard the liner may

have been relevant to a disputed factual issue, but their testimony as to what they thought




        3
           Among the statements, one witness told the jury that he was “offended” by the liner
because he was a listener and did not consider himself a shut-in, and that in his opinion
WARM “made it sound like Mr. McNulty was an old man who is catering to an older
market.” (A486). Another witness stated that the liner “reflected poorly on Terry McNulty
in that it cast him as a shut-in as well.” (A445).

                                                     13
the liner meant and how it impacted them was improper. Lay witnesses are not needed to

interpret clear conversation, see United States v. Dicker, 

, 1108-09 (3d Cir.

1988), especially when the opinion goes to the ultimate issue and witnesses’ testimony

distracts jurors “from their task of drawing an independent conclusion.” Hester v. BIC

Corp., 

, 182, 184 (2d Cir. 2000) (finding inadmissible testimony by four

witnesses who were not involved in decision-making process that employment decision

“must have been” based on race). Here, the witnesses were not in a better position to form

the opinion or make the inference, as the jury could easily understand what “not just for

shut-ins anymore” meant. Furthermore, the witnesses’ testimony went to the ultimate

issue, whether WARM’s action was motivated by age bias, and the witnesses usurped the

jury’s task of making an independent evaluation of the evidence.

             This erroneous admission was not harmless. See Advanced Medical, Inc. v.

Arden Medical Sys., Inc., 

, 199 (3d Cir. 1992) (error is only harmless if it is

“highly probable” that the error did not contribute to the judgment). Given that the evidence

of age discrimination was entirely circumstantial, and the overall evidence presented a

close case, it is probable that the jury, believing the witnesses’ views were to be considered

by them as proof, relied on them, in lieu of, or at least in formation of, their own opinion

regarding a key aspect of McNulty’s case. Because Citadel was prejudiced by the

erroneously admitted listeners’ testimony, we will grant a new trial.

        b. The jury instructions

           We will also grant a new trial on the basis of the District Court’s erroneous jury

                                                    14
instructions. The Court instructed the jury that age must have been a “motivating or

determinative” factor in McNulty’s termination. A jury instruction must properly apprise

the jury of the law, when taken as a whole. Limbach Co. v. Sheet Metal Workers Int’l Ass’n,

, 1259 n.15 (3d Cir. 1991). The parties agree that the standard for a

circumstantial evidence case was set forth in Watson v. Southeastern Penn. Trans. Auth.,

, 215 (3d Cir. 2000). In Watson, we stated, “In ‘pretext’ cases . . . a jury must

be charged that in order to find for the plaintiff, it must conclude that consideration of the

impermissible factor was ‘a determinative factor’ in the adverse employment action.” 

in contrast to “mixed-motives” or “direct evidence” cases, in which age may be

simply a “motivating” factor. 

Court conceded this was a pretext case only, not a mixed-motives case,

and that Watson set forth the correct instruction. However, the Court first questioned

whether Watson was good law, citing cases that preceded Watson approving in dicta the

“motivating or determinative” instruction. The Court then admitted that the instruction was

erroneous, but held that the error did not prejudice Citadel because of the curative

instruction, which “virtually defined the challenged formulation to mean what Watson

mandated.” Further, the Court found that the verdict form was also harmless, even though it

did not contain a correction, “since the jury fills out the verdict form in accordance with the

court’s instructions.”

        We find that the erroneous instructions were not harmless. Watson clearly requires

a jury to be charged with finding that age was a “determinative” factor. While there may be

                                                     15
several motivating factors that could cause an employer to take certain actions, it is

possible that a jury would find none to be determinative. Here, the “either/or” aspect

rendered the Court’s instruction harmful. The Court’s single clarification did not do

enough to correct the erroneous impression in the jury’s mind that it could find age to be

simply a “motivating” factor. First, the Court repeated the “motivating or determinative”

factor instruction later in the instruction without a clarification. Then, the verdict slip,

which was the only written form of the instruction that the jury had when making its

deliberations, contained no correction. Simply asserting that the jury fills out the verdict

slip in accordance with jury instructions is not enough to cure this defect. Given the

entirely circumstantial evidence of age discrimination here, and McNulty’s emphasis on the

“shut-ins” liner and other age-biased comments regarding the audience, a jury could have

found age to be a motivating but not determinative factor. Because the jury may have

found Citadel liable on an incorrect legal basis, we will grant a new trial.

B. Disparagement Claims

   Aside from his age discrimination claims, McNulty also claims that Citadel tarnished his

reputation after his termination by creating a materially false impression that he only

appealed to the elderly. Because McNulty has not proven actual harm from the statements

made by Citadel, we will affirm the District Court’s grant of summary judgment. Although

McNulty addresses his four disparagement claims together, we will dispose of them

separately.

  1. Lanham Act – False Advertising

                                                       16
     McNulty first claims that Citadel violated the Lanham Act. A claim for false

advertising under Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a) (1998), requires

proof that: 1) the defendant has made false or misleading statements regarding a product; 2)

there is actual deception or at least a tendency to deceive a substantial portion of the

intended audience; 3) the deception is material in that it is likely to influence purchasing

decisions; 4) the advertised goods traveled in interstate commerce; and 5) there is a

likelihood of injury to the plaintiff in terms of declining sales, loss of good will, etc.

Johnson & Johnson-Merck Consumer Pharmaceuticals Co. v. Rhone-Poulenc Rorer

Pharm., Inc., 

, 129 (3d Cir. 1994). Lanham Act claims require proof of a nexus

between the false statement and a third party’s decision not to do business with the plaintiff.

Synygy, Inc. v. Scott-Levin, Inc., 

, 577 (E.D. Pa. 1999), aff’d in a non-

precedential opinion, 

(3d Cir 2000).

     McNulty has not shown a nexus between the statements and his later inability to get a

job in broadcasting. Furthermore, he has offered no proof that Citadel’s statements had a

tendency to deceive “a substantial portion of the intended audience.” In Johnson-Merck, we

examined exhaustive consumer surveys to determine whether they were objective and

provided enough proof that a substantial portion of the intended audience, not just a select

few individuals, had been misled. 

. McNulty has not

presented any such evidence. We will therefore affirm summary judgment.

  2. Tortious Interference

     McNulty next claims tortious interference with prospective contractual relations. In

                                                       17
Pennsylvania, a claim for tortious interference requires proof of: 1) a reasonable

probability of a contract; 2) purpose or intent to harm plaintiff by preventing the

relationship from occurring; 3) absence of privilege or justification on the part of the

defendant; and 4) occurrence of actual damage. Advent Sys. Ltd v. Unisys Corp., 

, 673 (3d Cir. 1991); KBT Corp. v. Ceridian Corp., 

, 372 (E.D. Pa.

1997).

     The District Court found that McNulty had not proven actual damages or the existence

of a prospective contractual relationship, but simply implied that his reputation had been

damaged. We agree that McNulty has not proven there was a link between the statements

and his inability to get a broadcasting job, and will therefore affirm summary judgment.

  3. Commercial Disparagement

     McNulty also claims commercial disparagement. In Pennsylvania, a claim for

commercial disparagement requires proof that: 1) the statement is false; 2) the publisher

either intends the publication to cause pecuniary loss or reasonably should recognize that

publication will result in pecuniary loss; 3) pecuniary loss does in fact result; and 4) the

publisher either knows that the statement is false or acts in reckless disregard of its truth or

falsity. Neurotron Inc. v. Medical Serv. Assoc. of Pa., Inc., 

, (3d Cir. 2001).

In Neurotron, we examined Pennsylvania’s rule regarding commercial disparagement. At

the time, the Pennsylvania Supreme Court had not decided a trade libel case for over 25

years. The most recent case, Menefee v. Columbia Broadcasting Sys., Inc., 

(Pa. 1974), had been decided under the Restatement (First) of Torts, and did not require the

                                                     18
fourth falsity element. Since then, the Restatement (Second) of Torts has added the

requirement. In Neurotron, we held that the Pennsylvania Supreme Court would follow the

Restatement (Second), not Menefee, and would require evidence that the publisher was

reckless with regard to the falsity of its statement. 

.

     McNulty relies heavily on Menefee because the facts in that case are strikingly

similar, involving a radio broadcaster fired because of low ratings, suing over press

accounts of his departure. 

. Although we decided Neurotron a

year after the District Court’s summary judgment decision, the District Court’s decision

was based on simply interpreting what Pennsylvania law was at the time, and the Superior

Court had already predicted that the Pennsylvania Supreme Court would follow the

Restatement (Second), as had several other federal district courts. See 

. McNulty’s reliance on Menefee now is therefore misplaced. McNulty has

not even addressed, let alone proven, that Citadel either knew or was reckless to the

possibility that the statements it made were false. Furthermore, as with the previous two

claims, he has not proven any pecuniary loss arising from the statements. Therefore, we

will affirm summary judgment.

  4. Defamation

     Finally, McNulty claims defamation. In Pennsylvania, a plaintiff seeking to recover

for defamation bears the burden of proving: 1) the defamatory character of the

communication; 2) its publication by the defendant; 3) its application to the plaintiff; 4) the

understanding by the recipient of its defamatory meaning; 5) the understanding by the

                                                     19
recipient of it as intended to be applied to the plaintiff; 6) special harm resulting to the

plaintiff from its publication; and 7) abuse of a conditionally privileged occasion. 42 Pa.

C.S. § 8343(a) (1998).

     A plaintiff need not prove special harm when a statement is defamatory per se. 

. Words imputing “business misconduct” are defamatory per se if

they are of the type “that would be particularly harmful to an individual engaged in the

plaintiff’s business or profession.” 

with defamation per se, the plaintiff

must prove “general damages,” that is “that one’s reputation was actually affected by the

slander or that one suffered personal humiliation.” 

     As with the three other disparagement claims, McNulty has failed to prove damages.

Even assuming that Citadel’s statements imputed “business misconduct,” McNulty has not

proven that his reputation was actually affected. Although he has presented a number of

affidavits from industry professionals stating generally that statements impugning a

broadcaster’s ability to appeal to a younger audience are the “kiss of death” in the business,

he has not shown that his reputation was actually damaged in anyone’s eyes, or that

Citadel’s statements were responsible for his inability to find further employment as a

broadcaster. We will therefore affirm summary judgment.

                                               IV. Conclusion

        Because we find that McNulty has presented enough evidence to allow a reasonable

juror to find in his favor on his age discrimination claims, but that the District Court

erroneously admitted prejudicial evidence and erroneously instructed the jury, we will

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affirm the Court’s order denying judgment as a matter of law in favor of Citadel but reverse

the Court’s order denying a new trial. We will therefore grant a new trial on the age

discrimination claims. However, McNulty has failed to prove actual harm from Citadel’s

post-termination statements, therefore we will affirm the District Court’s grant of

summary judgment in favor of Citadel on the disparagement claims.

_________________________




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TO THE CLERK OF COURT:

     Please file the foregoing opinion.




                                               /s/ Marjorie O. Rendell
                                                    Circuit Judge




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