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GOODMAN v. HEITMAN FIN. SERVS.

August 10, 1995

ALVIN W. GOODMAN, Plaintiff,
v.
HEITMAN FINANCIAL SERVICES, et al., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 Alvin Goodman ("Goodman") brings this two-count action against Heitman Financial, Ltd. and its wholly-owned subsidiary Heitman Financial Services (collectively "Heitman," treated as a singular noun), alleging age discrimination (Count I) and retaliation (Count II) in violation of the Age Discrimination in Employment Act ("ADEA," 29 U.S.C. §§ 623(a) and 623(d)). *fn1" Goodman has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, *fn2" both sides have complied with this District Court's General Rule ("GR") 12(m) and 12(n) *fn3" and the motion is fully briefed and ready for decision. For the reasons stated in this memorandum opinion and order, Goodman's motion is denied as to Count I and granted as to liability (but not as to damages) as to Count II.

 Facts4

 Heitman is a Chicago-based real estate developer with nationwide operations. To assist its executives' frequent travels, Heitman maintains a two-jet five-pilot flight department. Goodman headed the department without complaint for about 10 years beginning in August 1983. Goodman's responsibilities included the safe piloting and maintenance of Heitman's aircraft.

 In October 1993 Goodman's relationship with Heitman began to unravel. Early that month he was informed orally by Heitman's Chief Executive Officer Norman Perlmutter ("Perlmutter") that he was being let go and that another Heitman pilot--Eddie Gantner ("Gantner"), age 53--was taking over as chief pilot. Then Goodman received this October 29, 1993 letter from Perlmutter:

 
Dear Al:
 
I want to express my appreciation for the fine years of service you have given the Company as Chief Pilot. As happens to all of us, the years go by too quickly; and we find that it is time to start to think in terms of less work and more personal enjoyment.
 
You have, of course, continued in this position anticipating these last years that you would retire at some time ahead. It is now here. Clearly, with your 70th birthday approaching, *fn5" it is time for you to retire from this position and turn over the helm to Eddie Gantner.
 
The Company would like you to officially turn over these responsibilities on November 1 as we discussed. You will remain on the payroll until your 70th birthday, and we would like you to use this time to enjoy a much-deserved vacation.
 
The Company is awarding you a $ 50,000 retirement bonus in recognition of the excellent service you have provided us.
 
We hope that you will be supportive of Eddie in his new role and give him whatever assistance he may require in assuming his responsibilities.
 
We wish you and Barbara well. I certainly hope that you will continue to consider yourself part of the Heitman family.
 
Best regards.
 
Sincerely,
 
/s/ Norman Perlmutter

 That letter forms the crux of Goodman's age discrimination claim against Heitman. On its face it supplies compelling evidence of discriminatory intent--but Heitman offers a rebuttal (which, as n.2 indicates, must be credited for present purposes--at least if any rational trier of fact could find it believable). Here it is:

 During 1992 and 1993 Perlmutter along with others at Heitman observed a rapid deterioration in Goodman's mental and physical condition, as a result of which Heitman lost confidence in Goodman's abilities as a pilot. Out of respect for his years or valuable service, Heitman decided to craft a letter designed to conceal the real reason for the termination by conjuring up a wholly fictitious and presumably less painful explanation. Thus, in colloquial terms Goodman was told "you're getting old" in lieu of the more hurtful "you're losing it" because Heitman wished to let him down easily.

 Heitman argues in the alternative that age is a bona fide occupational qualification ("BFOQ") under Section 623(f)(1) and that it was therefore justified in firing Goodman on that basis. In that respect Heitman relies primarily on the Federal Aviation Commission's "Rule 60" applicable to commercial pilots (though not to private company pilots such as Goodman (14 C.F.R. § 121.383(c)) and upon the expert opinion of Dr. Charles Billings to argue (a) that there are no tests (medical or otherwise) for identifying on an individualized basis which aging pilots can handle the job and (b) that in the interest of safety Heitman was entitled to use age as a proxy for ability.

 In March 1994 Goodman met with Perlmutter and Heitman's Chief Financial Officer and Executive Vice President Roger Smith ("Smith"). Goodman was concerned that under Perlmutter's October 1993 letter his wife would lose her health insurance eight months short of her 65th birthday, when she would become eligible for Medicare. Perlmutter agreed to put Goodman back on the Heitman payroll for one year as a "reserve pilot" (a makeshift position with no responsibilities) and to recharacterize the $ 50,000 retirement bonus as salary to be paid out over the year to a company that Goodman would set up. That arrangement paralleled a January 16, 1994 written request that Goodman had made of Heitman personnel officer Marge Reich ("Reich") that his retirement bonus be paid to "Alvin Goodman Associates." Goodman's only contact with Heitman after the March 1994 meeting was to discuss his wife's health insurance with Reich.

 On May 3, 1994 Goodman lodged an age discrimination charge against Heitman with Equal Employment Opportunity Commission ("EEOC"). On July 14, 1994 Heitman filed a nine-page position statement with EEOC, raising only a BFOQ defense. Nothing in that document referred to Goodman's deteriorating condition or to Heitman's desire to avoid bruising his feelings by referring to his age as a mask for its real reason in terminating him.

 On July 19 Goodman filed the Complaint in this action alleging age discrimination via the October 1993 termination (Count I). Some five weeks later Goodman's lawyer received this August 26, 1994 letter from Heitman's lawyer:

 
Re: Alvin W. Goodman v. Heitman Financial Services and Heitman Financial, Ltd. (Defendants collectively referred to as ...

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