available position for Casbier and that it raised the issue only in a footnote to its reply brief. It contends, however, that the court really did not base its ruling on that ground. According to Montgomery Ward, the court viewed the absence of an available position as establishing that Casbier's acceptance of the VSP was voluntary and thus held that Casbier, unlike the other plaintiffs, was bound by it.
Montgomery Ward's argument, though creative, is plainly wrong. There simply is no way to read this court's ruling other than as a determination that Casbier could not establish a prima facie case of age discrimination because of the unavailability of a position for him. Anderson v. Montgomery Ward, 650 F. Supp. at 1484-86. Indeed, the court specifically held that the VSP's did not establish that the plaintiffs who signed them relinquished their jobs voluntarily. Id. at 1484. *
Given the proper reading of this court's ruling, Casbier is entitled to reversal of the grant of summary judgment against him for three reasons. First, since Montgomery Ward did not base its motion for summary judgment on the absence of an available position for Casbier, granting summary judgment on this ground was improper. Stewart v. Credit Bureau, Inc., 236 U.S. App. D.C. 146, 734 F.2d 47, 53 & n.10 (D.C. Cir. 1984). Second, there were plenty of other positions within the company for which Casbier was qualified at the time he signed the VSP, so the factual predicate for the court's ruling was incorrect. Third, and perhaps most important, the law has changed since this court's ruling (and plaintiff's motion to reconsider it).
In Oxman v. WLS-TV, 846 F.2d 448 (7th Cir. 1988), the Seventh Circuit overruled past precedent and held that a plaintiff in an ADEA case involving a reduction-in-force (RIF) -- the elimination of a job position is "a small-scale RIF," id. at 455 n.3 -- need not prove "the existence of other open, available positions at the time of the plaintiff's termination." Id. at 454 (overruling Matthews v. Allis-Chalmers, 769 F.2d 1215 (7th Cir. 1985)). Under the new test:
Plaintiff can establish a prima facie case by showing that he was within the protected age group, that he was performing according to his employer's legitimate expectations, that he was terminated, and that others not in the protected class were treated more favorably. This formulation merely requires an employer that releases a protected employee while simultaneously hiring (or not "bumping") younger employees to fill positions for which the older employee was qualified to explain his actions without forcing the protected employee to uncover that elusive "smoking gun."