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Reaves v. Nexstar Broadcasting, Inc.

United States District Court, D. Oregon

July 3, 2018

CHRISTOPHER M. REAVES, Plaintiff,
v.
NEXSTAR BROADCASTING, INC., a Delaware corporation, and LIN TELEVISION CORPORATION dba KOIN-TV, a Delaware corporation, Defendants.

          Gene Mechanic MECHANIC LAW FIRM

          Whitney Stark ALBIES & STARK Attorneys for Plaintiff

          Thomas P. Busch MacCOLL BUSCH SATO, P.C.

          Charles W. Pautsch Lisa A. Baiocchi PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP LLP Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNANDEZ UNITED STATES DISTRICT JUDGE

         Plaintiff Christopher Reaves brings this employment discrimination and tort action against his former employer Lin Television Corporation (LIN-TV) as well as Nexstar Broadcasting, Inc. (Nexstar), a company that LIN-TV merged with after the events in this case occurred. Defendants move for summary judgment on the merits of all of Plaintiff's claims. Plaintiff moves for partial summary judgment on the single issue of Nexstar's successor liability for the acts committed by LIN-TV. I grant Defendants' motion as to the retaliation claims which Plaintiff withdraws, grant the motion on the "interactive process claims" to the extent they are asserted as stand-alone claims, grant the motion on the intentional interference with emotional distress claim, and deny the motion on all other claims. I grant Plaintiff's motion.

         BACKGROUND

         At the relevant time, LIN-TV owned local television station KOIN-TV in Portland. KOIN hired Plaintiff as an assignment editor in its news department in April 2012. Stark May 14, 2018 Decl., Ex. 4, ECF 45 at 2. He was terminated in October 2015.[1] Id., Ex. 28, ECF 45 at 41-42. According to an undated job announcement for the position, an assignment editor "facilitates producers' needs for the stations [sic] newscasts[;] [and] [g]enerates story ideas, researches, assigns, and directs crews and provides for follow up as needed." Busch Apr. 23, 2018 Decl., Ex. 1, ECF 34-1 at 4. Assignment editors must be able to work various shifts and possess "[s]olid news judgment as well as strong logistical skills," the "ability to work well in a fast paced and intense environment," and the ability "to multi-task and prioritize[.]" Id. Additionally, according to Casey Wenger, Nexstar's Human Resources and Business Administrator at KOIN, assignment editors "are responsible for establishing a network of contacts and constantly interact with numerous organizations throughout the community on a daily basis to gather information, including various local and state police departments." Wenger Apr. 20, 2018 Decl. ¶ 3, ECF 34-2. "As such," Wenger states, "it is an essential part of the job to have a good working relationship with these organizations, especially the police departments." Id. Plaintiff initially worked as a weekend assignment editor as well as a helper three days during the week. Stark May 14, 2018 Decl., Ex. 1, ECF 43-1 (Arbitration Hearing Transcript at 54) (hereinafter "Arb. Trans.").[2] Plaintiff moved to weekday mornings and then was moved back to the weekend assignment editor position. Id.

         I. Work History From Hire to September 1, 2015

         Plaintiff's last performance appraisal at KOIN before his October 2015 termination is dated November 2, 2013. Plaintiff met expectations in eighteen categories and exceeded expectations in two categories. Stark May 14, 2018 Decl., Ex. 6, ECF 45 at 3-6. He was not rated as below expectations or unsatisfactory in any category. Id. Plaintiff was never placed on a performance improvement plan. Arb. Trans. at 312 (Pl. Test.). Generally, he received both positive and critical feedback about his work. Id. at 312-14 . KOIN's News Director Kate Glover, however, described Plaintiff's work as showing a "progressive pattern of unprofessional behavior that was getting worse as time went by despite corrective measures." Id. at 54. She described his performance as "very inconsistent." Id.

         The summary judgment record shows that in 2014 and 2015, Plaintiff received several written warnings for unacceptable conduct. E.g., Wenger Apr. 20, 2018 Decl., Ex. A (Oct. 29, 2014 written warning regarding unprofessional communication); id., Ex. B (Nov. 17, 2014 written warning designated as "final" regarding an inappropriate "reply all" email to the Vancouver Police Department and noting that Plaintiff's conduct was reckless and could cause long lasting and far reaching issues for KOIN as a news organization); id., Ex. C (Feb. 27, 2015 "Final Warning with Suspension" for improperly using his status and association with KOIN to influence a personal matter at a restaurant); id., Ex. E (Aug. 7, 2015 "Written Warning" addressing inappropriate email regarding a coworker).

         There is also evidence of other employees complaining about Plaintiff's conduct. Id., Ex. D (June 18, 2015 email from Jason Stevens to Glover and Wenger complaining about statement Plaintiff made in a group); Busch Apr. 23, 2015 Decl., Ex 5 (June 27, 2015 email from lead assignment editor Colin Miner to Glover and Stevens, stating that "Christopher's negatives are far outweighing his usefulness on the desk" and complaining about problems with Plaintiff's work and personality). II. Disability-Related Knowledge by Defendants/Leave Requests Before September 1, 2015

         A. Disabilities

         Plaintiff has been diagnosed with depression, alcoholism, bipolar disorder, generalized anxiety, and post-traumatic stress disorder (PTSD). Stark May 14, 2018 Decl., Ex. 5 (Pl. Depo.) 123:22-124:5, ECF 43-1 at 359-360. At his arbitration hearing, he testified that in June or July 2012, just a few months after he was hired, he told then-Assistant News Director Jason Kravarik and lead assignment editor Tamara Greenville about his mental health issues because he wanted them to know he was having problems with depression and suicidal thoughts in case he might need time off. Arb. Trans. 316:24-317:19.

         After the October 2014 written warning, Plaintiff told Glover that he had been diagnosed with depression, anxiety, and PTSD. Id., 323:16-324:3-5. Glover asked him if the PTSD was related to military service, to which Plaintiff answered no and explained that it was the result of childhood abuse and trauma. Id., 324:3-8. Then, in December 2014, Carrie Biggs-Adams, Plaintiff's union representative, had a conversation with Cheryl Robb, LIN-TV's labor relations professional, about Plaintiff's mental health conditions. Id., 414:7-415:21. Biggs-Adams emailed Robb a treatment summary from Plaintiff's treating therapist stating that he was being treated for major depressive disorder, mild, single episode; generalized anxiety disorder; and PTSD. Id.; Stark May 14, 2018 Decl., Ex. 11, ECF 45 at 12 (copy of email to Robb with therapist's treatment summary).

         B. Leave Requests

         Sometime in the "spring of 2015," Plaintiff disclosed to Glover and Miner that he was an alcoholic and needed to go to inpatient treatment for help. Arb. Trans. 326:10-13; 327:8-13. Plaintiff initiated the meeting. Id. He believed his depression was worsening and his alcohol consumption outside of work was very high. Id., 326:15-23. He was concerned about himself and his health. Id. Glover responded that she had no idea Plaintiff had an alcohol problem. Id., 328:1-3.

         At the time, Plaintiff was working Monday through Friday, 4 am to 12 pm. Id., 328:10-11. He took medical leave from May 4, 2015 to May 17, 2015. Stark May 14, 2018 Decl., Ex. 12. He was treated at Cedar Hills Hospital and diagnosed with alcohol dependence, history of marijuana dependence versus abuse, and PTSD. Id. at 4. On May 15, 2015, Liisa Heard, Plaintiff's therapist at Cedar Hills, notified KOIN that Plaintiff was ready to return to work on May 18, 2018. Id., Ex. 13. The letter informed KOIN that Plaintiff had been receiving treatment at Cedar Hills's Outpatient Services since May 11, 2015, and that Heard recommended he return to work on May 18, 2015. Id. She also recommended that Plaintiff continue his participation in the Impaired Professionals Program at Cedar Hills Outpatient for the duration of the eight-week program. Id. She referred to Plaintiff's commitment to outpatient treatment and his active participation in the program. Id. His completion date was set for July 6, 2015, after which he would be encouraged to attend the ongoing "Continuing Care" support group. Id.

         Upon return from leave on May 18, 2018, Plaintiff worked his Monday - Friday, 4 am to 12 pm schedule. At some point, Plaintiff was told his shift would be changed. According to Plaintiff's arbitration hearing testimony, Miner told him his shift was going back to Wednesday through Sunday, with split hours. Arb. Trans. 329:2-8. Plaintiff states that he was displeased and wanted to remain on his current shift. Id. at 329:10-12. He was disappointed because KOIN was giving his old shift to a new hire and "this was her, her first job and I'd been doing this for awhile." Id. at 329:12-16. Plaintiff stated that Miner explained that placing Plaintiff back on weekends would let Plaintiff keep his "head down" and "out of Kate's [Glover's] sights." Id. at 329:17-19.

         Plaintiff discussed the planned change with Heard. Id. at 330:2-4. On June 24, 2015, Heard sent a letter via email to Wenger, as well as to union representatives Biggs-Adams and Kevin Wilson. Stark May 14, 2018 Decl., Ex. 14. Heard wrote that during group and individual counseling sessions, Plaintiff had disclosed experiencing increasing anxiety after receiving news that his shift was changing back to weekends. Id. She wrote that Plaintiff reported that his current weekday, early-morning shift was "conducive to his early recovery, allowing him to regularly attend AA meetings, participate in group, and re-engage with his family." Id. Heard recommended that Plaintiff's weekday schedule stay the same for at least three months. Id. She explained that "during early remission, it is important that support systems established are maintained and if his shift changes this could potentially undermine his progress thus far." Id.

         Glover and Wenger then met with Plaintiff on June 30, 2015. Reaves Decl. ¶ 2, ECF 42. In his Declaration, Plaintiff states that Glover was hostile as evidenced by her facial expressions and raised voice. Id. ¶ 3. Plaintiff believes that Glover "refused to accept the recommendation of my therapist." Id. He told Glover that the schedule change would prevent him from spending time with his wife and children on the weekends when they were available. Id. He told her further that the split shift hours would prevent him from getting sufficient sleep. Id. Nonetheless, Glover told Plaintiff she would change his schedule effective on or about July 6, 2015. Id.

         In a June 30, 2015 memorialization of the meeting, written by Wenger six days after the meeting, Wenger states that he and Glover told Plaintiff that they had received Heard's letter and wanted to make sure to accommodate Plaintiff's needs for all of his appointments. Busch Apr. 23, 2018 Decl., Ex. 6, ECF 34-1. Wenger confirmed with Plaintiff that he would still be able to make his appointments with his new schedule. Id. Wenger and Glover discussed the reason for the schedule change and why they believed it would relieve Plaintiff's stress and be good for him. Id. Wenger noted that Plaintiff had been making a lot of errors and mistakes which could not be tolerated and that he told Plaintiff he had to cut down on the errors and mistakes. Id.

         Glover then attempted to describe some error that Plaintiff had recently made. Id. Plaintiff tried to defend himself and Glover "got very vocal and loud." Id. She explained she was frustrated, that she wanted him to succeed, and she was not seeing "that success." Id. Wenger wrote that Glover was again "very loud and almost yelling at [Plaintiff] while explaining her view." Id. She scolded Plaintiff and yelled at him about a particular incident. Id. Plaintiff tried to explain but she would not listen. Id. At that point, Wenger cut it off and explained it was not going to be resolved "like this." Id. He told Plaintiff to "take this new opportunity and show us what you can do." Id. They believed this new schedule would be less stressful for Plaintiff. Id. At that point, Plaintiff walked out. Id.

         Wenger wrote that later that day, Plaintiff came to Wenger's office and they talked for about an hour. Id. Plaintiff expressed frustration and believed Glover was trying to terminate him. Id. He believed that despite his trying hard, he was never good enough to please Glover. Id. After further discussion about the dynamic of the relationship between Plaintiff and Glover, Wenger told Plaintiff that Glover was the news director and the final say was hers. Id. Wenger wrote that Plaintiff said "he was only given a two week chance to work the morning shift and now [Glover] was going with the new college girl." Id. Plaintiff told Wenger that the switch in mid-week from day to mornings was tough and he was unable to sleep. This is where some of his alcohol problems started because he was using it to make him sleepy or black out. Id.

         In his Declaration, Wenger states that he and Glover agreed to make sure that Plaintiff was scheduled so that he would have time to participate in his group therapy and to attend AA meetings. Wenger Decl. ¶ 10. They told him that he would not be given a weekday/early morning schedule. Id. According to Wenger, at no time in this meeting or at any point, did Plaintiff suggest that he could not do his job on the weekday/weekend shift. Id. III. Events of September 1, 2015 to Termination

         A. The September 1, 2015 Incident

         Plaintiff relapsed and began drinking again. On September 1, 2015, he was depressed, intoxicated, had an argument with his wife, and walked out of his house with the intention of being hit by a car. Arb. Trans. 334:1-25. He went to a relatively busy road, lay down, and closed his eyes. Id. That is the last thing he remembers until he woke up the next morning in a holding cell in the Multnomah County jail. Id. When Plaintiff left his house, Plaintiff's wife called 911, stating that Plaintiff had left the house on foot and was threatening to hurt himself. Stark Decl., Ex. 17 (M. Reaves Depo.) 110:5-21.

         Police found Plaintiff lying in Shattuck Road, near Beaverton-Hillsdale Highway. Busch Apr. 23, 2018 Decl., Ex. 2 (police reports). Plaintiff was surrounded by vehicles which had stopped, apparently to protect him. Id. The police made sure Plaintiff was breathing, and talked to those present to confirm he had not been hit by a car. Id. When the second officer arrived, they blocked off Shattuck Road. Id. Before emergency medical services arrived, Plaintiff kept trying to sit up and leave. Id. Once he was checked by emergency medical services, which confirmed he was uninjured, Plaintiff was told he needed to stand up and get out of the street. Id. He responded with "Fuck you." Id. He repeated this to the police who then "assisted" Plaintiff to his feet by lifting him up by his upper arms. Id. He was then placed into custody. Id. The police described him as belligerent, cursing at them, and kicking as they tried to put a seat belt on him. Id. After arriving at the jail, he lay down on the ground and refused to get up. Id. Jail deputies then assisted him and took him inside where he continued to be noncompliant and failed to listen to simple commands. Id.

         When Plaintiff woke up in the jail the next morning, September 2, 2015, he was booked for disorderly conduct. Later he was transported to Providence Portland Medical Center where he was placed on a mental hold. Arb. Trans. 335:12-21; see also Stark May 14, 2018 Decl., Ex.20 (emergency department chart note). He was discharged later that day, after being seen by a social worker and a psychiatrist. Id. at 2337:22-338:3. According to Plaintiff, he was released into the care of his wife. Id. He later learned that the disorderly conduct charge had been dismissed. Stark May 14, 2018 Decl., Ex. 19.

         When Plaintiff did not show up at work as scheduled on September 2, 2015, assistant news director Jason Stevens called Plaintiff's wife who told Stevens Plaintiff was not well. Arb. Trans. 223:12-224-13. Stevens passed the information to Glover. Id. at 224:12-13. Glover called Plaintiff's wife. Id. at 91:7-19. Glover was concerned about whether Plaintiff was going to come to work the following day and asked Plaintiff's wife if Plaintiff could call Glover back by 6:00 to 6:45 pm. Id.

         Plaintiff called Glover about 6:30 pm. Id. at 336:9-337:21. He almost immediately started sobbing uncontrollably. Id. He told her he was in the hospital and tried to kill himself when he was drunk and got into an argument with his wife. Id. He related that his wife was concerned, had called 911, that the police came and took him into custody, and eventually he was taken to a hospital. Id. He testified that in response, Glover told him to take care of himself and to let her know what was happening. Id. He told her he would not be at work the next day but would call her and let her know when he was ready to return. Id. After talking to Plaintiff, Glover emailed Wenger and others to update them about Plaintiff including telling them he had tried to commit suicide and was in the hospital on a mental hold. Stark May 14, 2018 Decl, Ex. 18.

         B. Medical Leave

         Plaintiff checked himself into Cedar Hills Hospital on September 5, 2015. Stark May 14, 2018 Decl., Ex. 36. He remained there until September 14, 2015. Id. Upon discharge, his diagnoses were PTSD; major depressive disorder, recurrent; anxiety disorder not otherwise specified; alcohol dependence continuous; and alcohol withdrawal. Id.

         The day before, on September 4, 2015, he requested medical leave from KOIN for September 2, 2015 through September 15, 2015. Wenger Decl. ¶ 16. He requested and received additional medical leave through October 13, 2015. Id. On October 14, 2015, Plaintiff presented a release from his physician, stating that he was ready to return to full, active, and regular work duties. Stark May 14, 2018 Decl., Ex. 27.

         C. Termination

         After speaking with Plaintiff on September 2, 2015, Glover asked the assignment desk to see if there was information in the court system about the September 1, 2015 incident. Arb. Trans. 98:1-8. An assignment editor found the charging document and a mug shot. Id. Glover also called the Portland Police Bureau's Public Information Officer. Id. at 98:16-18, 101:4-5. In an email on September 3, 2015 sent to Wenger and others, Glover summarized what had been learned from the police and concluded by saying that Plaintiff had lied to her. Stark May 14, 2018 Decl., Ex. 22. She stated: "he never said he was arrested or was in jail or had a mug shot taken." Id.

         Wenger states that because of the nature of Plaintiff's position and the importance of his relationship with police departments, KOIN believed it was necessary to investigate the incident further. Wenger Decl. ¶ 14. It was also important to get Plaintiff's side of the story. Id. On September 4, 2015, Glover and Wenger talked to Plaintiff by phone. Id. ¶ 15; Arb. Trans. 244:8, 343:24-25-344:1-2. In notes that appear to have been made soon after that phone call, Wenger wrote that the station had heard about Plaintiff's arrest and because of the incident, KOIN was going to perform an investigation "to find out what is going on." Stark May 14, 2018 Decl., Ex. 23. Wenger told Plaintiff that Plaintiff was not to come to work until he was notified to return. Id. His access to the office was being removed until the investigation was complete and his emails would be forwarded to a manager so that the station would miss no client calls or information. Id. Wenger asked Plaintiff why he had not informed them of "his situation" and asked if he wanted to tell them what was going on. Id. Plaintiff shared that he had had a fight with his wife, had gone into the street to try and get run over, his wife called 911, the police came and took him to jail where he was charged with disorderly conduct and booked into jail, that he was released with charges dropped and the case dismissed, and that he had been taken to Providence Hospital for a mental health/suicide evaluation. Id. In his Declaration, Wenger states that KOIN asked Plaintiff why he had not mentioned his arrest previously, to which Plaintiff stated that he had not said anything because the charges were dropped. Wenger Decl. ¶ 15. Wenger states that Plaintiff was placed on administrative leave while the station completed its investigation. Id.

         On September 11, 2015, Wenger emailed Plaintiff a letter stating that the station had completed its investigation into the events "of last week," including his September 1, 2015 arrest. Stark Decl., Ex. 25. Wenger told Plaintiff that before making any determination about what, if any, disciplinary actions may be appropriate, the station wanted to meet with Plaintiff and his union representative to allow Plaintiff to explain his actions. Id. Wenger told Plaintiff that the meeting would not take place until after Plaintiff had completed his leave and been cleared by his health care provider to return to work. Id.

         Plaintiff was cleared to work on October 13, 2015. Wenger Decl. ¶ 17. KOIN scheduled a meeting with Plaintiff on October 14, 2015 to obtain information from Plaintiff. Id. ¶ 19. Leading up to this meeting, Wenger prepared a chronological time table of what he calls the "key events" in Plaintiff's recent employment history, including disciplinary events and leave periods. Id. ¶ 18; Id., Ex. F. On October 14, 2015, station managers, including Wenger, met with Plaintiff in person. Id. ¶ 19. He was asked why he had not been forthcoming about the details of his arrest. Id. Plaintiff responded that he did not mention it because the charges were dropped and he could not remember the details of that night. Id. Plaintiff was asked if he understood that his actions impacted his credibility and undermined KOIN's trust in him. Id. ¶ 20. He said yes and agreed that it was especially important to be able to trust someone in his position which required him to have a good relationship with various police organizations. Id. He also agreed that his actions, even those outside of work, could impact the station's relationship in the community, including the police agencies and their impression of the station. Id.

         At the start of the meeting, at which Plaintiff, Wenger, and Glover attended in person with union representative Adam-Biggs on the phone, Plaintiff presented his release to return to work from his psychiatrist, Dr. Gilbert Simas, who said that Plaintiff had been followed by his clinic, would continue to engage in its services, and was ready to return to work. Stark Decl., Ex. 27. Apparently, Plaintiff waited until the day before the October 14, 2015 meeting to request the letter from his doctor. Arb. Trans. 352:8:18. During a regular session with Dr. Simas on October 13, 2015, Dr. Simas told Plaintiff that his assistant would email Plaintiff the letter clearing him for work. Id. He also told Plaintiff that he was going to be out of town for two weeks and Plaintiff would not be able to see him. Id. By closing time of Dr. Simas's office, Plaintiff had not yet received the letter. Id. at 352:19-20. Plaintiff knew the letter was important because Glover had told him he could not return to the building without it. Id. at 352:20-24. Plaintiff accessed his work LexisNexis account from his home computer to look up an email address for Dr. Simas. Id. at 353:4-8. After finding some gmail addresses, Plaintiff emailed Dr. Simas to request that he ask his assistant to send the letter. Id. at 353:9-15. He received the letter the next morning. Id.

         During the October 14, 2015 meeting, Glover asked Plaintiff about the use of his work LexisNexis account. Id. at 355:6-20. Plaintiff explained why he had accessed the account. Id. Glover told Plaintiff that his access to LexisNexis had been cut off as a result of the September 4, 2015 call (presumably referring to the administrative leave).

         As Wenger explains in his Declaration, afer the October 14, 2015 meeting with Plaintiff, the station reviewed all of the information gathered during its investigation, considered the information provided by Plaintiff, and reviewed Plaintiff's disciplinary history. Wenger Decl. ¶ 21. Wenger states that KOIN decided to terminate Plaintiff effective October 16, 2015 because his actions demonstrated a failure to meet acceptable work conduct and performance standards and evidenced his inability to effectively perform his job then and in the future. Id. ¶ 22. The actions cited included his intoxication on September 1st, his failure to be "upfront" with the station following the incident (by not disclosing the arrest presumably), and by accessing the company's LexisNexis account while on leave. Id. Wenger states that Plaintiff's acts showed that he had "completely disregarded the final warnings" he had been given. Id. A formal termination letter, dated October 16, 2015, summarized prior incidents, noted the September 1, 2015 disorderly conduct arrest, remarked on his failure to be "upfront" with KOIN, and discussed his access to the LexisNexis account. Wenger Decl., Ex. G. The letter concluded that as a result of Plaintiff's actions and in light of his previous warnings, he was terminated effective that date. Id.

         IV. Relationship Between Dependants

          KOIN has been a TV station in Oregon since 1953 and is a local CBS affiliate. Arb. Tr. 27:18-19, 28:9-11. LIN Media bought the station from New Vision Television in October 2012. Id. at 236:8-11. Media General, Inc. acquired LIN Media in 2014. Wenger May 14, 2018 Decl. ¶ 3 (before the merger of Media General, Inc. with Nexstar in January 2017, LIN operated as a subsidiary of Media General and had done so since December 2014).

         Media General and Nexstar officially merged in January 2017. Id. (referring to merger of Media General, Inc. v. Nexstar Broadcasting, Inc.). Defendants confirmed at oral argument that there is no dispute that as part of the merger, Nexstar, through its acquisition of Media General, acquired all of LIN-TV's properties, rights, privileges, powers as well as all of its claims, obligations, liabilities, and debts. See Stark May 14, 2018 Decl., Ex. 2 at 12 (Merger Agreement). The merger, finalized on January 17, 2017, resulted in Nexstar owning KOIN. Id., Ex. 3 at 6-8 (SEC filing by Nexstar Media Group, Inc. stating that on January 17, 2017, it completed its merger with Media General, Inc.); id., Ex. 32 at 3, 29 (Federal Communications Commission Order transferring the control applications (call signs and community of license) of KOIN and other Media General television stations to Nexstar Media Group, stating that "the acquisition of Media General by Nexstar through a series of mergers" would mean that all "of the Media General license subsidiaries will be direct or indirect wholly owned subsidiaries of Nexstar and will hold all the same broadcast licenses they currently do"). On April 29, 2017, Nexstar filed a "Voluntary Statement of Foreign Merger" with the Oregon Corporation Division stating the Name of Surviving Entity as Nexstar Broadcasting, Inc. and the Name of Non-Surviving Entity as LIN Television Corporation. Id., Ex. 33. The Oregon Secretary of State's website notes the Nexstar "Action" as "Articles of Merger" and lists Nexstar Broadcasting, Inc. as the "Merger Survivor" and LIN Television Corporation as the "Merger Non Survivor." Id.

         STANDARDS

         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)).

         Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

         The substantive law governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. ...


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