<i>Commentary</i><br>Observations on Artistic Director's Suit Against Geffen Playhouse

The main focus of the complaint, namely, age discrimination, also has serious plot holes (to borrow from theater jargon). The lawsuit was filed the day after the Geffen announced the hiring of Matt Shakman, who is 20 years younger than Arney, as the new artistic director. Although it is certainly true that an age discrimination case can be predicated on someone over 40 (Arney is 61) being replaced by someone significantly younger (Shakman is 41) even if they are both in the over-40 protected class, the typical claim from a plaintiff is that he had an expectation that a termination would be for good cause, or at least, would not be without notice and related to the plaintiff's age. After all, California law (outside of a few exceptions not applicable here) does not allow employers to impose mandatory retirement at a certain age, and an employer cannot terminate an employee performing well simply because of their age, or because of assumptions regarding how their age may affect them in the near future.

In this case, however, Arney admits in his complaint that he had been consecutively employed on two-year contracts — the difference being that in the last one in 2015, an option to add on a year at the end of the standard two-year term was removed. He therefore knew in 2015 that his employment was going to definitively end in 2017 and would not be renewed. If he believed the change in the contractual term was because of his age, he should have raised the issue and negotiated different terms in 2015. To wait until the contract expires in 2017, and then to sue because the Geffen simply followed the express terms of the contract, makes his current outrage over alleged age discrimination suspect at best.

Similarly, his argument that the termination had to do with the Bell's Palsy he claims to have contracted in 2016 falls flat. (Bell's Palsy is characterized often by some amount of facial paralysis.) When he started showing symptoms, he was already more than a year into a contract that stated it could not be renewed and would terminate the following year. Again, the allegation that the Geffen was motivated by an apparent desire to discriminate for a perceived disability is negated by the language of the contract to which Arney had agreed the prior year.

Overall, this case is indicative of the problem many employers face when they have high-profile executive positions that are subject to multiple variables, such as public opinion, politics or funding. The Geffen likely has good reasons for wanting its artistic director always to be subject to a two-year employment agreement — reasons that have nothing to do with the director's age, but are similar to many major league sports teams, universities and public companies. Regardless of how well the top person may be performing, if it becomes necessary to make a change at the top, employers want the flexibility to do so and want to avoid lawsuits just like this one, so they employ high-profile (and often highly compensated) people on short contracts that even if broken, only risk a year or two of salary.

The Geffen negotiated the disputed employment contract with Arney when he was 58 years old. He claims a major term had changed, namely, that option to add on a year at the end of the standard two-year term, but he signed that agreement nonetheless. Now, when he has received all the benefits of that agreement, he wants to cry foul and claim that he should not be held to the clear expiration of the agreement that he voluntarily agreed to three years ago.

Arney may gain some money from this lawsuit, but the end result will likely be increased ticket prices at the Geffen to offset the costs associated with this litigation. Therefore, the punishment Arney apparently seeks, will likely only be meted out on the theater-going public — the very group of people Arney claims were the reason he took the artistic director position in the first place, wanting to give back to the public and to enhance the theater experience in Los Angeles.

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Todd R. Wulffson is Managing Partner of the Orange County, CA, law office of Carothers DiSante & Freidenberger. He represents business on labor and employment matters, and previously served as General Counsel and Senior Vice President of Human Resources at Palace Entertainment.