memorandum as an argument (see n. 8). Instead the "factual" presentation at Heitman Mem. 13 somehow attempts to convert the second sentence of the August 1994 letter into an assertion (not made there, and really not even implied there) that after the March 1994 meeting Goodman had failed to supply Heitman with the federal tax identification number ("TIN") for his company, as a result of which Heitman formed the belief that Goodman had rejected their agreement. More on this subject later.
Goodman currently flies under the name of an unincorporated sole proprietorship called "Alvin Goodman Aviation Enterprise." Under that rubric he has flown part-time for another carrier since January 1994 at $ 250 per day, providing gross income of some $ 31,000 in 1994. Goodman has not received any part of the $ 50,000 promised by Heitman, either as retirement bonus or as salary.
Age Discrimination (Count I)
Section 623(a)(1) forbids an employer from firing or refusing to hire or "otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's age." While the statute originally limited such protection to workers between the ages of 40 and 65, a series of amendments uncapped the ADEA so that there is now no bright-line upper age limit (Section 631). Goodman alleges in Count I that Heitman violated Section 623(a)(1)'s prohibition against age discrimination by terminating him because he turned 70. To prevail by way of summary judgment Goodman must show that no reasonable jury could conclude otherwise.
Goodman Mem. 3-5 reflects that he has taken the road less travelled by seeking to prove discrimination directly, without use of the familiar burden-shifting formula set out originally for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and since applied to ADEA claims (see, e.g., Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 1995 U.S. App. LEXIS 19933, at *5-*6 (7th Cir.) and cases cited there).
Given the often subtle and elusive aspects of age discrimination ( La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1409-10 (7th Cir. 1984); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898-99 (3d Cir. 1987) (en banc)), the ever-increasing legal sophistication of many employers (Ann McGinley, Credulous Courts and the Tortured Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. Rev. 203, 215 n.45 (1993)) and the inherent difficulties in any attempt to establish someone else's state of mind ( United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716-17, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983); Chipollini, 814 F.2d at 899), it is not surprising that courts see less and less direct evidence of discriminatory intent as the years tick by.
Nevertheless the route clearly remains open ( Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985); McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir. 1992); La Montagne, 750 F.2d at 1409-10; Charles Sullivan & Michael Zimmer, Proving a Violation under the Age Discrimination in Employment Act of 1967, 17 Seton Hall L. Rev. 803, 810-11 (1987)). Direct evidence has surfaced for example in an interviewer's notes reflecting that a job applicant was considered "too old" for a position ( Hodgson v. First Fed. Sav. & Loan Ass'n, 455 F.2d 818, 821 (5th Cir. 1972)), in a supervisor's characterization of an employer's hiring practices as a "youth movement" ( Schulz v. Hickok Mfg. Co., 358 F. Supp. 1208, 1212 (N.D.Ga. 1973)) and in a letter to an aging faculty member denying tenure that included as one of its reasons recent federal legislation invalidating the school's mandatory retirement policy ( Puppel v. Illinois Benedictine College, 731 F. Supp. 310, 311 (N.D. Ill. 1990)). For other examples both real and posited, see Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433-34 (4th Cir. 1985); Jackson v. Shell Oil Co., 702 F.2d 197, 199, 201 (9th Cir. 1983); Hagelthorn v. Kennecott Corp., 710 F.2d 76, 78, 80 (2d Cir. 1983); Stanojev v. Ebasco Servs. Inc., 643 F.2d 914, 921 (2d Cir. 1981)).
What is involved in those terms here is a pitting of the plain language of the October 1993 termination letter against the explanation that is now provided by Heitman. For Rule 56 purposes the question boils down to this: In light of the letter's several explicit references to age (particularly the unequivocal "Clearly, with your 70th birthday approaching, it is time for you to retire"), could a reasonable jury believe testimony from Perlmutter and perhaps others (a) that the real reason for the decision was a loss in confidence in Goodman's abilities as a pilot resulting from an observed physical and mental decline and (b) that the October 1993 letter was designed to let Goodman down gently by making him think that he was being fired on account of age when the real reason was his rapidly deteriorating condition?
That explanation may be nothing more than a contrived cover story, but in the present posture of the case that decision must be made by a trier of fact--not by this Court as a matter of law. After all, the letter itself may have been a cover story of a different type. Modern life is full of little white lies designed to appease the listener and to skirt conflict. Without being overly cynical, it seems fair to say that it would be difficult to imagine a world without measured doses of deception of that nature.
In Rule 56 terms it is enough to say that a reasonable jury could credit Heitman's explanation, and that suffices to defeat Goodman's motion for summary judgment as to Count I. To be sure, Heitman's chosen defense creates some obvious credibility problems of its own: If Perlmutter admits to having lied to Goodman for his supposed benefit, how is the jury to know that Perlmutter is not lying to them to protect his (and hence Heitman's) own interests? And if the real reason for terminating Goodman was his performance and not his age, what explains the fact that when the purported desire to avoid bruising Goodman's feelings was no longer operative--after he had already filed discrimination charges with EEOC--nothing contained in the detailed position paper that his lawyers filed with EEOC, and even later nothing contained in the three versions of Answers and Amended Answers containing affirmative defenses ("ADs") that Heitman filed in this action,
contained a single reference to that claimed reason? But the short answer for now is that Heitman has preserved the right to address those along with many other questions at trial.
Because Count I must indeed go to trial, this opinion goes on to treat with Heitman's ADs to that claim. One of those defenses (Heitman's BFOQ claim) occupied by far the major portion of Goodman's two memoranda on the current motion and a significant (though by no means dominant) part of Heitman's memorandum, while the others were touched on only fleetingly or not at all in the course of the parties' briefing.
As for the BFOQ issue, the parties' extended preoccupation with that subject has proved to be quite needless. Without question it must be recognized as a total afterthought (and indeed a lawyer's, not a client's, afterthought) in this case. Wholly unlike the situation in such cases as Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 86 L. Ed. 2d 321, 105 S. Ct. 2743 (1985) and Monroe v. United Air Lines, Inc., 736 F.2d 394 (7th Cir. 1984), where airlines confronted with the need to deal with large numbers of their flight personnel (those not governed by the FAA's Age 60 Rule) determined up front that in their view it was impossible or impracticable to screen out those personnel over a specified age who could not do the job, in this instance Heitman expressly claims that it made precisely that individualized decision as to Goodman. And that claim has been elaborated upon at length and in detail in order that Perlmutter and Heitman can get out from under the otherwise damning statements in Perlmutter's October 29, 1993 letter.
There is a good deal to be said in such circumstances for the application of the approach that in a number of other legal contexts has been spoken of as the "mend the hold" doctrine (see, e.g., Harbor Ins. Co. v. Continental Bank Corp., 922 F.2d 357, 362-63 (7th Cir. 1990) and the affirmance of one of this Court's decisions in QAD. Inc. v. ALN Associates, Inc., 974 F.2d 834, 839 (7th Cir. 1992)): Having taken a position as to its intent in terminating Goodman and as to its intent in referring to his age as a mere cover story for its true intent (intent being a critical element in an employment discrimination case), Heitman cannot then shift ground to say that its intent was rather to apply a BFOQ--to use age as an arbitrary surrogate for a decision that it believed it could not make as to Goodman's actual ability to carry out his responsibilities as a pilot.
In all events Heitman cannot here maintain its hindsight BFOQ contention, which emerged only when--well after it had terminated Goodman for other asserted reasons and after Goodman had gone to EEOC with his age-discrimination charge--the problem was placed in its lawyers' hands to draft a position paper. Again it is underscored that the claimed BFOQ rationale is entirely at odds with what its decisionmaker Perlmutter has sworn was his real reason for the termination. In the form in which Heitman has advanced that BFOQ defense--as a claimed defense to its liability under Count I--that AD 1 is dismissed.
Heitman's other ADs may be addressed in brief compass. AD 2 asserts that Goodman did not do enough to mitigate his damages--something that plainly raises questions of fact to be dealt with at trial. AD 3 says that Goodman is not entitled to relief because of after-acquired evidence of inadequate job performance, an issue that under McKennon may go to damages and therefore may also be posed at trial. AD 4, asserting accord and satisfaction, fails under the Section 626(f) limitation on waivers of rights under the ADEA: Goodman entered into no written agreement in the form designated there, and so he did not waive his right to recover under the statute. Finally, AD 5 involves an alleged set-off to damages and, like the other damage arguments, must be resolved at trial.
In sum, Heitman's ADs 1 and 4 are dismissed. Its ADs 2, 3 and 5 survive for resolution at the trial of Goodman's Count I claim.
Retaliation (Count II)
Section 623(d) forbids an employer from retaliating against an employee for reasons stemming from the employer's alleged age discrimination (more precisely, the employer may not "discriminate against [an] employee...because [he or she] has opposed any practice made unlawful by [Section 623], or because [he or she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under [ADEA]"). It will be remembered that less than 45 days after Goodman launched this action charging Heitman with age discrimination, Heitman backed out of its $ 50,000 obligation under the March 1994 agreement. Again, to prevail by way of summary judgment Goodman must show that no reasonable jury could view that action as other than retaliatory.
Once more Goodman Mem. 5-6 eschews the McDonnell-Douglas framework in favor of a direct approach to proving retaliation. Both methods are of course applicable to Section 623(d), though the indirect route is most often traveled (see, e.g., Brenner v. Brown, 36 F.3d 18, 19 (7th Cir. 1994) (per curiam); Rennie v. Dalton, 3 F.3d 1100, 1108-09 (7th Cir. 1993)) for the obvious reason that employers so seldom say that they are engaged in retaliatory conduct. And so once more it becomes necessary to delve into Heitman's collective mind. This time that requires a look at what Heitman now says motivated the August 1994 letter in which its lawyer disavowed its obligation.
By way of recapitulation, it will be recalled that Heitman suggests in its purported factual submission (but without any reference to evidentiary support, and without even addressing the subject in its legal memorandum) that it issued that letter because Goodman had failed to provide it with the TIN for his company. Heitman says in its "factual" submission, again without any attempt at evidentiary support, that without that information it was incapable of completing the paperwork needed to return Goodman to the payroll and to pay his retirement bonus as salary. That argument could well be dispatched because of its procedural insufficiency under Rule 56 and GR 12(n). But out of a superabundance of caution and because the matter may bear on Heitman's credibility as such, this opinion will look at the argument's merit (or in this instance its lack of merit).
Even a cursory examination of the tax laws and regulations reveals the suspect nature of Heitman's explanation. Under certain circumstances an employer is required to secure an employee's TIN and to include that number in returns, statements and other filings (26 C.F.R. § 301.6109-1(c)). Any employer who does not have an employee's TIN must request that information from the employee (id.), for which purpose the IRS has prepared its Form W-9.
Form W-9's instructions specify what information the employee is to provide: Any individual must turn over his or her Social Security Number ("SSN"), any corporation or partnership must apply for and receive a special TIN called an Employer Identification Number ("EIN") and report that number, and any sole proprietor has the option of providing either its EIN or the individual owner's SSN. IRS regulations set out what an employer is to do if a request for the required information fails to bear fruit: In that event the required filing is still made, accompanied by a signed affidavit describing the efforts made to secure the missing TIN (26 C.F.R. § 301.6109-1(c)). Related provisions instruct the employer on how to handle withholding and other matters (see 26 U.S.C. §§ 3405(d)(12) and 3406(a)(1)(A)).
Heitman's purported cover story must be viewed as pretextual. For one thing, some degree of stretch is involved in Heitman's assertion that it didn't already have Goodman's TIN. Unless Goodman's company was in corporate form, his TIN would be his already-existing SSN, and Heitman had to have had that number on file because Goodman had been its employee. Remember that before the March 1994 meeting Goodman had written Reich in his cordial January 16, 1994 memo:
I have formed a company, Alvin Goodman Associates, to provide Aircraft Consulting and Pilot Services.
And remember, as any lawyer knows, that the name that Goodman had then given to Heitman (lacking any corporate indicia) negated the existence of a corporation--indeed, it suggested instead the use of the sole proprietorship that is in fact Goodman's vehicle for doing business.
It is true that Goodman has responded to two deposition questions about the March 1994 meeting in this fashion (Goodman Dep. 43):
Q. Did you ever tell Mr. Perlmutter or Mr. Smith on the 16th that you were going to incorporate an entity in order to receive the compensation that was discussed on the 16th?