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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:

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 ...

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