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Although CBS Corp. and Sony Pictures couldn’t quite put an end to former Young and the Restless star Victoria Rowell’s lawsuit for refusing to revive her role as Drucilla Barber Winters, the entertainment companies did get a judge on Tuesday to dismiss her claims for now.
Rowell is attempting to sue for retaliation. She alleges her advocacy to increase the presence of African Americans both in front of and behind the camera in soap operas has resulted in not being invited back on either Y&R or The Bold and the Beautiful despite fan support. In response, the defendants argued that she couldn’t sue for retaliation because she doesn’t even allege she applied for any position.
In an opinion issued on Tuesday, U.S. District Judge John Kronstadt says Rowell can’t point to any case law supporting the idea that a prima facie retaliation claim can be made by a failure to rehire. Nor does the fact that soap opera actors regularly exit and reappear help her out.
“In effect, Plaintiff claims that there is always a position that is constructively open,” writes the judge. “This alone is not a sufficient basis to state a claim. Indeed, such an approach has the potential to open the door to vast number and wide variety of claims in many industries in which those who did not pursue open positions claimed that employers should have created them. There is no justification for such a material expansion of the McDonnell Douglas test. It would create a new issue: whether there was a reasonable basis for an employer not to have created a new position.”
The judge dismisses the claim, but does so with an opportunity to Rowell that she can try again if she can muster allegations that support a viable claim.
CBS and Sony haven’t quite ended the lawsuit partly because the judge rejects a First Amendment challenge to Rowell’s lawsuit.
The entertainment companies pointed to previous lawsuit over alleged racial discrimination on The Bachelor, where a judge wrote how casting decisions are a component of any entertainment show’s creative content and are protected as free speech.
Judge Kronstadt believes that this case is distinguishable.
“In a challenge to casting decisions, there is a critical distinction between claims of alleged discrimination and those of alleged retaliation,” he writes. “Plaintiff does not allege that the failure to hire her was due to her race or that the casting decisions by any of the Defendants were made on that ground … Instead, Plaintiff alleges that she was not hired in retaliation for engaging in protected speech. Thus, unlike the plaintiff in Claybrooks, Plaintiff here does not allege that the decision not to hire her was related to Defendants’ creative vision for their programs.”
In short, Rowell’s peculiar retaliation claim isn’t yet solid enough to proceed, though its deviation from the standard employment claim has allowed her to dodge a First Amendment bullet.
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