(CN) – A model for “The Price is Right” who claimed the show fired her for being pregnant will get a second chance to recoup an $8.5 million jury award that was tossed by a trial court, a state appeals court ruled.
Brandi Cochran worked as a model for “The Price is Right” – TV’s longest-running game show – from 2002 until she announced her pregnancy with twins in 2009. During that time, she went from one in a pool of a dozen models to part of the show’s “A-Team” of models, according to the Second Appellate District’s ruling.
Cochran sued FremantleMedia North America, which owns the show, and CBS in Los Angeles Superior Court in 2010, claiming producers harassed her about her pregnancy and fired her after she took medical leave to recover from the difficult birth.
Show producer Kathy Greco allegedly told Cochran that an earlier miscarriage was “nature’s way of getting rid of a bad baby.” And when Cochran told the producer about her next pregnancy, Greco said to another model, “Go figure! I fire five girls, what are the odds,” Cochran said in her complaint.
And producers pressured her to announce her pregnancy on air after repeatedly telling her she was “showing,” according to the lawsuit. After the on-air announcement, Cochran said she revealed that she was carrying twins. Executive producer Mike Richards put his face in his hands and “asked her twice, in an annoyed tone, ‘Twins? Are you serious? You’re serious?'”
After that, Cochran claimed her bosses cut back her hours and continually changed her schedule.
After the death of one of Cochran’s twins in utero and the premature birth of the other by emergency Caesarian section, Cochran needed several months to recover and nurse her newborn daughter back to health.
When she was ready, Cochran told her bosses “she had lost her excess weight and was ready to work.”
But Greco and Richards gave her the cold shoulder and refused to schedule her.
“At trial, Richards testified that since Cochran’s last appearance on the show in January 2009, the show had evolved into an ensemble format relying on fewer models. Claiming that he was happy with the line-up of models then in place, Richards said Cochran was a ‘good model’ but ‘would not take us to great,'” according to the appeals court’s summary of the case.
Cochran sued FreemantleMedia, CBS and The Price is Right Productions.
A jury found that Cochran’s pregnancy was “a motivating factor” in the show’s decision to fire her, but rejected her disability discrimination claim. The jurors awarded Cochran $8.5 million in compensatory and punitive damages for wrongful termination.
FremantleMedia moved for a new trial and argued that an unrelated California Supreme Court ruling in 2013 changed the applicable standard of discrimination from “motivating factor” to “substantial motivating factor.” The company also asked for a judgment notwithstanding the verdict in its favor.
Los Angeles Superior Court Judge Kevin C. Brazile granted a new trial, but denied Fremantle’s request for a new verdict. Brazile rejected the company’s claim that the producers were merely exercising their “creative process” by firing Cochran, which Fremantle argued was a nondiscriminatory casting choice based on a desire to take the show “from good to great” when comedian Drew Carey replaced Bob Barker as the show’s host.
Fremantle appealed, and Cochran cross-appealed.
At the Second Appellate District, a three-judge panel found that Fremantle’s First Amendment argument was moot in light of the pending new trial – which the appeals court upheld and Cochran hadn’t fought.
“Only the retrial will establish whether Cochran’s pregnancy was, as Harris v. City of Santa Monica requires, a substantial factor in her not being rehired,” Judge Laurence Rubin wrote.
And Fremantle’s free speech argument lacked supporting facts about its other supposed reasons for refusing to rehire Cochran, the panel found.
“It was FremantleMedia’s burden at trial to establish that its right to free speech trumped Cochran’s right to be free from discrimination,” Rubin wrote.
Rubin also declined to consider Fremantle’s claim that punitive damages cannot be awarded for employment discrimination.
“FremantleMedia’s desire that we address punitive damages is premature because the trial court vacated the jury’s verdict, including the punitive damages award,” Rubin wrote. “Thus, FremantleMedia currently has no obligation to pay punitive damages to Cochran.”
As for Cochran’s argument that her time spent caring for her newborn daughter – who spent weeks in the hospital after birth – called for a modified jury instruction on what constitutes disability discrimination, the appeals panel declined to take up the issue.
“We do not know what the evidence will show upon retrial about associational disability involving Cochran’s relationship with her daughter,” Rubin wrote. “We leave to the trial court in the first instance the decision whether substantial evidence will support instructing the jury on associational-disability discrimination along the lines set out by Cochran.”
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