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May 10, 1985


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


Plaintiff Jonah Oxman's ("Oxman") complaint alleges that defendant WLS-TV fired him from his employment at WLS-TV because of his age.*fn1 Before the court now is Oxman's motion for summary judgment on Count II of that complaint, brought under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (1976) ("ADEA"), and WLS's cross motion for summary judgment. For the reasoned stated below, both motions are denied.


Oxman, 61, worked for WLS-TV for about sixteen years. He joined WLS-TV as a newswriter on July 24, 1967, following thirteen years as a newswriter-producer at WBBM-TV and nine months at WMAQ-TV. After four months in the newswriter position, Oxman became a management employee in the newsroom at WLS-TV. The duties of this position included supervision of the newsroom in the absence of the News Director and the supervision of the station's four film crews. In 1968 with the hiring of William Fyffe as News Director, Oxman's title was changed to Business Manager. His duties expanded to include budgeting, scheduling, purchasing, personnel, labor relations and legal affairs. For six months in 1978, Oxman held an Executive Producer position, but his job duties remained the same. During a twenty week strike in 1977, Oxman worked as a newswriter and Associate Producer, producing two shows daily.

The circumstances leading to Oxman's termination occurred as follows. In 1981, WLS-TV created the "Northwest Bureau," primarily for the purpose of covering news stories in the northwest suburbs. This was the only suburban Bureau WLS-TV had. Oxman was named as manager of the Bureau. The Bureau staff also included two camera crew members and a reporter. Oxman's position as Bureau Manager afforded him the opportunity to have more journalistic responsibilities than the administrative responsibilities he had in his former position. As Bureau Manager, Oxman worked with the assignment desk developing stories and assuring their coverage.

In mid-1983, rumors began to circulate that then General Manager Dennis Swanson ("Swanson") and then News Director William Applegate ("Applegate") wanted to close the Northwest Bureau as part of their plan to cut expenses and improve efficiency at WLS-TV. After Oxman heard these rumors he asked if they were true. Oxman was reassured that no decision to close the Bureau had been made, and that the station was happy with the quality of his job performance at the Bureau. In September, 1983, Kim Peterson, a Bureau reporter, was reassigned by Applegate to do morning news inserts on "Good Morning America", a network broadcast. Peterson no longer reported to the Bureau, and her position as Bureau reporter was not filled. Because of Peterson's reassignment, the Bureau started covering fewer stories. In late December, 1983, Swanson made the final decision to close the Bureau as of January 27, 1984. The crew assigned to the Bureau began to work out of WLS-TV's downtown offices from where they continued covering news stories in the Chicago area. At about the same time, certain personnel and news directors at WLS-TV began to discuss the possibility of offering Oxman an early retirement package. The package was essentially a year's salary as an incentive for retiring. Oxman stated that he was not ready to retire and wanted to continue at WLS-TV in another capacity.

On January 5, 1984, Oxman learned that he was going to be fired. At a meeting on January 10, 1984 with Applegate, Oxman again stated his desire to continue working for WLS-TV. Applegate denied that there were any positions available for Oxman. Oxman says that Applegate told him that the news business had grown very complex in recent years and that if Oxman took a job as a producer that he knew that within a week they would discover that Oxman could not do the job. Applegate stated that there was a job freeze and that age was not a factor in Oxman's termination. Oxman was terminated on January 27, 1984, the day the Bureau closed.


Both plaintiff and defendant have filed motions for summary judgment on the issue of whether WLS-TV violated the ADEA by discharging and failing to transfer Oxman to another position at the station. Summary judgment is generally inappropriate in employment discrimination cases because so much often depends on an employer's credibility and his or her hidden or unconscious motives. See Selsor v. Callaghan, 609 F. Supp. 1003, 1006-1007 (N.D.Ill. 1985) (Aspen, J.). Yet summary judgment has been affirmed in the less common cases where no evidence suggests that motive or intent is involved. Parker v. Fed'l. National Mtg. Assn., 741 F.2d 975, 979-81 (7th Cir. 1984); Huhn v. Koehring Co., 718 F.2d 239, 243-45 (7th Cir. 1983). As in any case, summary judgment will be granted only if "no genuine issue as to any material fact" exists. Fed.R.Civ.P. 56(c). The moving party bears the burden of proving that there is no genuine factual issue, Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir. 1984), and the Court must view the evidence, as well as the reasonable inferences drawn from the evidence, in the light most favorable to the party opposing the motion. Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir. 1984).

Section 623 of the ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual . . . because of such individual's age." 29 U.S.C. § 623(a). The plaintiff bears the ultimate burden of proving that he was discharged because of his age. LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984). To meet this burden the plaintiff must prove that age was a "determining factor" in the sense that he would not have been discharged "but for" his employer's motive to discriminate against him on the basis of his age. LaMontagne, 750 F.2d at 1409. The plaintiff may use one of two methods of proof. The plaintiff can meet the burden directly by presenting direct or circumstantial evidence that age was a determining factor in the decision to discharge. Id. Alternatively, the plaintiff can prove his case indirectly by following the more common burden shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). E.g., LaMontagne, 750 F.2d at 1409.

In the present case Oxman has relied on the McDonnell Douglas indirect method of proof. It is undisputed that at the age of 61, Oxman was within the protected age group at the time of discharge, that he was performing his job to the satisfaction of WLS, that he was discharged despite the adequacy of his performance. The parties dispute, however, the existence and relevance of the fourth element, that is, whether WLS sought a replacement for Oxman.

This is not the typical termination case in which an older employee has been fired and replaced. Oxman was fired as part of a structural re-organization. WLS-TV correctly points out that Oxman cannot meet element number four as currently defined because his position no longer existed; thus, WLS-TV could not "replace" him. But WLS-TV concludes simply from this fact that Oxman thereby cannot prove his prima facie case. It asserts that we should deny his termination case and treat Oxman as a new applicant for other positions which opened up when he was fired, applying the "applicant" version of the McDonnell Douglas formula.*fn3 In contrast, Oxman reformulates the fourth element in a way which, in effect, collapses the two-step approach taken by WLS-TV. He retains the first three elements, and argues that he meets a fourth element which he defines as "at or near the time of termination WLS-TV had vacancies in positions that Oxman was qualified for." He cites no cases prescribing his exact formulation. Both parties' approaches are a bit confused, which is not surprising, since this case simply does not fit the usual McDonnell Douglas formula. To arrive at a sensible approach, we must review the origin and purposes of the McDonnell Douglas formula, and then tailor that formula to fit the unusual facts of this case.

The McDonnell Douglas indirect method of proof deals with the practical problem that many discrimination cases will yield no direct evidence of discrimination. The formula was created as a means of ruling out typical non-discriminatory reasons for hiring or firing, which thereby produces a common-sense inference of unlawful age discrimination, even where the plaintiff presents no evidence that age motivated the employer. See, e.g., LaMontagne, 750 F.2d at 1409-10. But as we recognized in our earlier opinion in this case, Oxman, 595 F. Supp. at 563, the formula is neither "rigid, mechanized or ritualistic." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). In creating the test, the Supreme Court wrote that the test will sometimes have to be changed to adapt to varying fact situations. McDonnell Douglas, 411 U.S. at 802 n. ...

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