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United States District Court, Northern District of Illinois, E. D

September 2, 1980


The opinion of the court was delivered by: Aspen, District Judge:


This is an action brought pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA") 29 U.S.C. § 621 et seq. Plaintiff Lawson H. Smith ("Smith") alleges that in two separate instances his previous employer, World Book-Childcraft International, Inc. ("World Book") acted in violation of the ADEA. Smith alleges that World Book first discriminated against him in 1979 in connection with his termination because of age as a branch manager for the company. Smith also alleges that age discrimination was the cause of World Book's refusal to transfer him to a branch manager position in Knoxville, Tennessee.

This case is now before the Court on defendant's motion to dismiss for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction under Rule 12(b) of the Federal Rules of Civil Procedure. However, because defendant has not raised a single argument regarding subject matter jurisdiction,*fn1 and because both parties have submitted affidavits in support of their positions, the Court will treat the motion as one for summary judgment. F.R.Civ.P. 12(c).

In 1958, Smith was hired by World Book as a sales representative and in 1971 he was promoted to the position of branch manager. Smith alleges that his performance and qualifications equalled or exceeded that of other branch managers but that in spite of his good performance, he was terminated in September, 1979, without an offer of transfer to a comparable position. At the time of his termination, Smith was 47 years old. Smith further alleges that at the time of his termination, World Book refused to transfer him to an available branch manager position in Knoxville, for which he was fully qualified. Smith contends that these actions are part of a pattern and practice of age discrimination engaged in by World Book with regard to its branch managers.

World Book argues that as a matter of law, Smith cannot make out a prima facie case of illegal age discrimination on either claim because: (1) when World Book terminated Smith, it replaced him with an individual ten years his senior, and (2) at the time of Smith's transfer request there was no branch manager position available in Knoxville.

Although the Seventh Circuit has not specifically considered what method of analysis is to be used in reviewing complaints brought under the ADEA, other courts have held, and the parties in this case agree, that the standards set forth by the Supreme Court with regard to Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) constitute the guidelines for establishing a prima facie case under the ADEA. Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979); Schwager v. Sun Oil Co., 591 F.2d 58 (10th Cir. 1979); Hughes v. Black Hills Power & Light Co., 585 F.2d 918 (8th Cir. 1978); Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977); Marshall v. Goodyear Tire and Rubber Co., 554 F.2d 730 (5th Cir. 1977); Laugesen v. Anaconda Company, 510 F.2d 307 (6th Cir. 1975). However, because the ADEA is a separate act with its own unique history,*fn2 and because the McDonnell Douglas decision specifically counsels flexibility,*fn3 it would be improper to apply the McDonnell Douglas standards mechanically to all cases arising under the ADEA. Nonetheless, the starting point for this Court's analysis of World Book's motion is found in the language of the McDonnell Douglas decision, 411 U.S. at 802, 93 S.Ct. at 1824:

  The complainant in a Title VII trial must carry
  the initial burden under the statute of
  establishing a prima facie case of racial
  discrimination. This may be done by showing (i)
  that he belongs to a racial

  minority; (ii) that he applied and was qualified
  for a job for which the employer was seeking
  applicants; (iii) that, despite his
  qualifications, he was rejected; and (iv) that,
  after his rejection, the position remained open
  and the employer continued to seek applicants
  from persons of complainant's qualifications.

In determining whether World Book's failure to comply with Smith's request for a transfer to Knoxville was a result of illegal age discrimination, this Court directs its attention to the second McDonnell Douglas requirement. In his complaint, Smith alleges that he applied and was qualified for an available branch manager's position in Knoxville. World Book asserts, however, that the position was not available on the date of Smith's application. In support thereof, World Book filed the affidavit of Barton L. Breighner, director of United States and Canadian sales for World Book. Mr. Breighner, who is responsible for personnel actions affecting sales personnel on the branch level, stated that on August 17, 1979, Smith inquired as to the possibility of a transfer to branch manager in World Book's Knoxville office. Mr. Breighner, according to his affidavit, informed Smith that the Knoxville position had been offered to and accepted by Duane Hood on July 31, 1979-nearly three weeks prior to Smith's transfer request.

In response to Breighner's affidavit, Smith likewise filed an affidavit regarding the events surrounding his transfer request. However, Smith's affidavit merely confirms Breighner's depiction of the transfer request. Smith does not dispute that the Knoxville branch manager's position was given to Duane Hood prior to Smith's request for the job. It is therefore undisputed that the position to which Smith requested transferral was unavailable at the time of his request. Consequently, it would be impossible for Smith to prove that World Book's failure to transfer him to Knoxville was predicated upon impermissible factors such as age. Marshall v. Airpax Electronics, Inc., 595 F.2d 1043, 1044-45 (5th Cir. 1979). The Court reaches this conclusion, not merely because one of the guidelines established in McDonnell Douglas has not been met, but rather because after a careful evaluation of all the uncontroverted facts, it is clear that Smith cannot prove as a matter of law that his failure to be transferred was due to age discrimination. Because Smith has failed to make a prima facie case of illegal discrimination, summary judgment is granted to World Book with respect to Smith's claim of illegal failure to transfer.

The facts surrounding Smith's termination provide a more difficult question. World Book argues that because Smith was replaced by a person ten years older than he, as a matter of law, he cannot make out a prima facie case of illegal age discrimination under the ADEA. In effect, World Book asks this Court to hold that replacement by a younger employee is a prerequisite for setting forth a prima facie ease of age discrimination in the context of a claim of unlawful termination. For the reasons detailed below, this Court rejects the unyielding and mechanical test suggested by World Book.

World Book does not dispute that Smith has sufficiently alleged the first three elements of a McDonnell Douglas prima facie case, in that Smith claims that (1) he is within the age group protected by the ADEA; (2) he was doing satisfactory work; and (3) he was discharged despite the adequacy of his work. It is the fourth requirement that provides the basis for World Book's challenge. That requirement, as stated by the Court in McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, is:

  that, after his rejection, the position remained
  open and the employer continued to seek
  applicants from persons of complainant's

While there is some difficulty in applying a standard set in a Title VII hiring case to the present fact situation, there can be no doubt that Smith has met the explicit requirements of McDonnell Douglas. World Book does not deny that after Smith's termination, World Book did seek and hire someone of his qualifications for the position of branch manager.

World Book, however, would have this Court read into the McDonnell Douglas standard, an implicit requirement that the complainant be replaced by a person younger than the complainant. It is essential to note that there is no language in McDonnell Douglas itself to support such a reading. Nonetheless, World Book contends that support for its interpretation can be found in Schwager v. Sun Oil Company of Pennsylvania, 591 F.2d 58 (10th Cir. 1979), and Price v. Maryland Casualty Company, 561 F.2d 609 (5th Cir. 1977).*fn4

While it is true that the court in Schwager held that to show a prima facie case under the ADEA, one must establish that the position was filled by employees younger than the plaintiff, the court offered no citation of support, nor any explanation for the inclusion of this requirement. In fact, because the plaintiff in Schwager met this requirement easily, the court had no need to seriously consider the ramifications of its holding. Nonetheless, the court very carefully rejected the mechanical application of standards now urged by World Book and emphasized that the standards established in its opinion were "merely guidelines and not inflexible, rigid approaches to determine whether a prima facie case has been established." 591 F.2d at 61 n.1.*fn5

The Price decision arises in a very different context from the instant case. Murray Price, a fifty-six year old employee of the Maryland Casualty Company, charged that his employer had discharged him due to age discrimination, arguing that he effectively had been replaced by two employees, age forty-nine and fifty. The trial court reached a verdict against Price, ruling that plaintiff had shown a prima facie case but that defendants had adequately rebutted any inference of discrimination on the basis of age.

On appeal, the Fifth Circuit affirmed the trial court holding on the alternative grounds that Price had not shown a prima facie case, and even if he had satisfied the prima facie requirements, defendant had adequately rebutted them. In so doing, the court articulated its version of the McDonnell Douglas standard as applied to age discrimination. The court included a requirement that the claimant show that "he was replaced with a person outside the protected group. . . ." 561 F.2d at 612. Contra, Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). In so doing, the Fifth Circuit created, without citation of authority and without a word of explanation or reasoning, an entirely new dimension to proving a prima facie case of age discrimination.*fn6 This invention of the Fifth Circuit has met with considerable criticism from courts and commentators alike. Larson, Employment Discrimination § 98.53 (1979); Moore v. Sears, Roebuck and Co., 464 F. Supp. 357, 360-61 (N.D.Ga. 1979); Marshall v. Baltimore & Ohio Ry. Co., 461 F. Supp. 362, 372 (D.Md. 1978); Polstorff v. Fletcher, 452 F. Supp. 17 (N.D.Ala. 1978).

Interestingly, two of the opinions that criticize the Price decision, arise out of district courts in the Fifth Circuit itself. In Polstorff, the defendant, citing Price, argued that plaintiff had not established a prima facie case of age discrimination because plaintiff was not replaced by someone from outside the "protected group."*fn7 The court rejected this "mechanical approach" because the McDonnell Douglas decision "does not establish an immutable definition of a prima facie case." 452 F. Supp. at 24. The same argument was asserted and rejected in Moore, with the court, after a thorough review of Supreme Court and Fifth Circuit opinions, concluding that,

  The applicable case law therefore leads us to
  reject Sears' insistence on literal application
  of the Price formula as the single test of the
  plaintiffs' discrimination claims. Common sense
  leads to the same result, for even an employee (1)
  whose position is eliminated entirely, or (2) whose
  position is eliminated but whose duties are filled
  by others of his age, can still succeed in creating
  an inference, as

  conceived in Furnco, of discriminatory employment

464 F. Supp. at 363.

This Court concurs with the decisions reached in Polstorff and Moore in rejecting the concept of a rigid prima facie formula. While we conclude that McDonnell Douglas provides an appropriate starting point for the analysis of age discrimination cases, it should not be viewed as establishing per se rules that all plaintiffs must meet. The Supreme Court has left no doubt that McDonnell Douglas was not intended to indicate an exclusive method for proving a claim of discrimination.*fn8 International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).

The facts in this case well illustrate the dangers inherent to the use of a per se rule. World Book correctly emphasizes that Smith's replacement was ten years older than Smith. There is no question that this fact will have a significant bearing upon the issue of whether Smith has made a prima facie case of discrimination. However, Smith claims, upon information and belief, that his replacement, Betty Sundin, had previously been his supervisor and therefore she effectively was demoted by being placed in Smith's position. This too is a factor that will significantly bear upon the question of a prima facie case-but it is a factor that would have to be wholly and incorrectly ignored if this Court were to adopt the per se rule urged by World Book.*fn9 Moreover, the application of a per se test would provide employers with an easy method of defeating discrimination suits without defeating discrimination. See Marshall v. Baltimore & Ohio Ry. Co., 461 F. Supp. at 372. The ADEA was not intended to be such a vehicle.

Having rejected the application of a per se rule with respect to Smith's replacement, this Court must address World Book's alternative contention that as a matter of law Smith is incapable of making a prima facie case of age discrimination. As explained above, a prima facie showing is made when plaintiff alleges facts that raise the inference that an employment decision was probably based upon an impermissible factor such as age. Furnco Construction Co. v. Waters, 438 U.S. 567, 577-78, 98 S.Ct. 2943, 2949-2950, 57 L.Ed.2d 957 (1978). However, given the early stage of this proceeding, it is premature to make such a determination. The Court notes that World Book has yet to answer Smith's complaint and that Smith has not as yet been afforded an opportunity to gather statistical information through discovery. Once these activities are concluded, either party may again move for summary judgment.

Accordingly, World Book's motion for summary judgment with respect to Smith's transfer claim is granted; World Book's motion for summary judgment with respect to Smith's claim of illegal termination is denied at this time; and World Book is given 21 days to answer Smith's complaint, with discovery to commence immediately. It is so ordered.

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