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June 30, 1983


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


Cletus Parker ("Parker") sues Federal National Mortgage Association ("FNMA") under the Age Discrimination in Employment Act, 29 U.S.C. § 621-34 ("ADEA"),*fn1 alleging FNMA (1) terminated his employment (Count I) and (2) classified him as "retired" rather than "terminated" (Count II as amended) because of his age. FNMA has moved for summary judgment. For the reasons stated in this memorandum opinion and order FNMA's motion is granted.

Controlling Legal Principles*fn2

Section 623(a) makes it unlawful for an employer:

    (1) to fail or refuse to hire or to discharge any
  individual or otherwise discriminate against any
  individual with respect to his compensation, terms,
  conditions, or privileges of employment, because of
  such individual's age;
    (2) to limit, segregate, or classify his employees
  in any way which would deprive or tend to deprive any
  individual of employment opportunities or otherwise
  adversely affect his status as an employee, because
  of such individual's age; or
    (3) to reduce the wage rate of any employee in
  order to comply with this chapter.*fn3

As Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 550 (7th Cir. 1982) (emphasis in original) teaches:

  Thus, to establish a cause of action under the ADEA,
  a claimant must show that he was discriminated
  against because of his age.

ADEA does not make it unlawful, for instance, simply to discharge an employee between the ages of 40 and 70. ADEA violations occur only when employers allow age to be "a determining factor" in discharge or other employment decisions. Id. at 551-52 & n. 2.

In both Golomb, id. at 551 and Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1219 (7th Cir. 1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981), our Court of Appeals approved for use in ADEA cases the ping-pong-match burden-of-proof formula that the Supreme Court has devised for employment discrimination cases under Title VII of the Civil Rights Act of 1964. As summarized in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted), that formula provides:

  First, the plaintiff has the burden of proving by the
  preponderance of the evidence a prima facie case of
  discrimination. Second, if the plaintiff succeeds in
  proving the prima facie case, the burden shifts to
  the defendant "to articulate some legitimate,
  nondiscriminatory reason for the employee's
  rejection." . . . Third, should the defendant carry
  this burden, the plaintiff must then have an
  opportunity to prove by a preponderance of the
  evidence that the legitimate reasons offered by the
  defendant were not its true reasons, but were a
  pretext for discrimination. . . .
  The nature of the burden that shifts to the defendant
  should be understood in light of the plaintiff's
  ultimate and intermediate burdens. The ultimate
  burden of persuading the trier of fact that the
  defendant intentionally discriminated against the
  plaintiff remains at all times with the
  plaintiff. . . . [That] division of intermediate
  evidentiary burdens serves to bring the litigants and
  the court expeditiously and fairly to this ultimate

But the Supreme Court has recently reminded litigants and lower courts they should not lose sight of that "ultimate question" — intentional discrimination vel non — as they work through the Burdine formula in a trial of an employment discrimination action on the merits. United States Postal Service Board of Governors v. Aikens, ___ U.S. ___, ___, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).

That admonition presumably applies as well in the "mini-trial" conducted on a motion for summary judgment. Our Court of Appeals has recently restated the law governing such a motion in Egger v. Phillips, 710 F.2d 292 at 296-297 (7th Cir. 1983) (citations omitted):

  Moreover, a factual dispute does not preclude summary
  judgment unless, of course, the disputed fact is
  outcome determinative under the governing law. It is
  thus axiomatic that even in the face of some factual
  disputes, "where the undisputed facts demonstrate
  that one party is entitled to judgment as a matter of
  law, summary judgment in favor of that party is
  entirely appropriate," . . . just as it is plain that
  if genuine factual disputes are resolved in favor of
  the non-movant, summary judgment may be entered in
  favor of the movant if appropriate as a matter of

Blending that analysis with governing ADEA law yields the following:

    1. FNMA has the initial burden of showing the
  absence of a genuine issue as to its intention to
  discriminate ...

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