By Bonnie Eslinger
(Law360, Los Angeles)

A California judge on Friday refused to toss age discrimination claims against NBCUniversal Media LLC brought by a fired investigative journalist, saying the Peabody Award-winning reporter needn’t show he was replaced by someone significantly younger to prove older workers in the newsroom were treated less favorably.

Los Angeles Superior Court Judge Stephen Moloney’s ruling keeps journalist Frank W. Snepp’s suit on track for a Nov. 2 trial. A reporter for the network's Los Angeles affiliate, KNBC-TV, Snepp sued in October 2013, alleging he was the victim of the station's efforts to appeal to a younger demographic when he was terminated in October 2012 at age 69.

In its motion for summary judgment, NBC argued that Snepp's claims of age discrimination failed because he couldn’t prove he was performing competently in his position when he was fired. He also couldn’t establish he was replaced by someone significantly younger, the network said.

Judge Moloney said in his Friday ruling that NBC’s reliance on another age discrimination case, Hersant v. Dept. of Social Services, to make that point was misguided.

“Hersant expressly stated that it was unclear whether replacement by a younger person is a required element of the prima facie case,” Moloney wrote in his ruling. “Indeed, the prima facie case only requires circumstances that suggests discriminatory motive ... for which the analysis is whether otherwise similarly situated employees were treated more favorably.”

NBC claims Snepp was terminated for poor job performance, not for being too old.

Judge Moloney said while Snepp couldn’t establish pretext by “simply disputing the legitimate reasons” the network put forward for his firing, the journalist had presented sufficient evidence raising triable issues of fact on his claim that age was the real reason NBC dumped him.

Snepp, who was a chief intelligence analyst for the Central Intelligence Agency in North Vietnam during the Vietnam War, has decades of television news experience under his belt. He was hired by NBC in 2005 at the age of 61. One year later, he earned the prestigious Peabody Award for a four-part series that investigated environmental and safety hazards at the site of commercial-residential development in southwest Los Angeles.

According to Snepp's complaint, around 2009, NBC started focusing on its online content, and began marginalizing Snepp and other older employees. In August 2010, there was a change in leadership at the station: Vickie Burns, the new news director, frequently stated her desire to appeal to a young audience of 20-somethings, Snepp said.. Once, at a morning staff meeting, Snepp alleges that Burns turned to him and said, ‘Some people just see you as a grumpy old man who oughta just quit.'"

Burns also allegedly scolded another manager, NBC Platform Manager Todd Reed, after he put Snepp on air to provide commentary for the breaking story of Osama bin Laden’s death in May 2011.

"Mr. Reed believed he had been instructed to pull plaintiff because he was an old 'veteran' employee,” Snepp’s suit states. “Plaintiff and Mr. Reed agreed that older employees seemed to be losing out in the newsroom.”

Snepp's civil complaint says his experience with ageism was not unique. Throughout his employment, he made several complaints about the company's apparent age discrimination, including submitting a 150-page summary of his experiences to his superiors. Snapp's suit also claims he was retaliated against for speaking out about the age discrimination at the station.

That cause of action, however, was struck Friday by Judge Moloney, who agreed with NBC that Snepp failed to show a causal link between his complaints about age discrimination to the network’s human resources and legal departments and the news managers who fired him.

“Even if the Court considered Plaintiff’s ... self-assessment as protected activity, no evidence is presented to support knowledge by the decision makers of any protected activity asserted by Plaintiff,” Judge Moloney wrote.

Representatives for the parties could not be reached for comment on Friday.

Snepp is represented by Suzelle Smith and Ames Smith with Howarth & Smith.

NBC is represented by Janice P. Brown, Stacy L. Fode and Meagan E. Garland of Brown Law Group.

The case is Frank W. Snepp v. Comcast Corp. et al., case number BC523279, in the Superior Court of the State of California, County of Los Angeles.