McCoy v. WGN TELEVISION, 89 C 4368.

• Decision Date: 23 October 1990
• Docket Number: No. 89 C 4368.,89 C 4368.
• Citation: 758 F. Supp. 1231
• Parties: Ron G. McCOY, Plaintiff, v. WGN TELEVISION, A DIVISION OF WGN CONTINENTAL BROADCASTING COMPANY, a subsidiary of Tribune Broadcasting Company, Defendant.
• Court: U.S. District Court — Northern District of Illinois

758 F. Supp. 1231

Ron G. McCOY, Plaintiff, v. WGN TELEVISION, A DIVISION OF WGN CONTINENTAL BROADCASTING COMPANY, a subsidiary of Tribune Broadcasting Company, Defendant.

No. 89 C 4368.

United States District Court, N.D. Illinois, E.D.

October 23, 1990.

Peter R. Meyers, Therese E. Zallar, Meyers & Meyers, Chicago, Ill., for plaintiff.

John W. Powers, Brenda H. Fels, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Ron G. McCoy ("McCoy") has filed a Complaint against his ex-employer WGN Television ("WGN"),¹ asserting violations of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634. McCoy makes three claims:

1. WGN transferred him to a different position within its organization on account of his age.²

2. WGN later terminated his employment in retaliation for his filing a claim of age discrimination.

3. WGN also (or alternatively) discharged him on the basis of his age.

WGN now moves under Fed.R.Civ.P. ("Rule") 56 for summary judgment on all three claims. For the reasons stated in this memorandum opinion and order, WGN's motion is granted in its entirety.

Facts³

In the summer of 1983, while working as the Promotional Manager for KTVT in Dallas/Ft. Worth, McCoy (then 41 years old) was approached about employment at WGN by James Ellis ("Ellis"), Vice President of Creative Services for WGN's parent company referred to in n. 1. On October 17, 1983 WGN's General Manager Joe Loughlin ("Loughlin") hired McCoy as the TV Station's Director of Creative Services. McCoy replaced a younger incumbent and was told (McCoy Dep. 38) that the "position just needed a fresh look" and that the Creative Services "staff was not working at their full potential" (id.). McCoy was "responsible for enhancing station image and on-air look through the use of outdoor, transit, print and radio advertising as well as on-air promotion and public relations" (id. Ex. 4).

While some evidence indicates that McCoy performed well in some areas of his job, by March 1987 it was clear that his supervisor, Loughlin, was not satisfied with his overall performance. At that time Loughlin told McCoy that he was contemplating replacing McCoy with someone else because "he and I weren't on the same wavelength" (id. 83). McCoy also stated in his deposition that Loughlin had exhibited some dissatisfaction with two incidents in McCoy's department (id. 85-86).⁴

Ellis also confirmed that McCoy's performance was not optimal, but he thought it possible that the workload in McCoy's department was too great for him to handle. Ellis reviewed the performance of McCoy and his department and observed that McCoy's greater talents lay in dealing with people. Ellis reported those observations first to Loughlin and then to Loughlin's successor as Station Manager, Dennis FitzSimons ("FitzSimons").

During McCoy's tenure as Director of Creative Services, his department received several awards. However, he acknowledged that none of the awards was given for his individual work — instead they were for work primarily performed by an outside advertising agency. McCoy also received a letter from an outside consulting agency both commending and criticizing a promotional cassette prepared by McCoy's department.

WGN-TV's Controller John J. Vitanovec ("Vitanovec") stated that McCoy's pay increases in 1984 and 1985 were "no higher" than those of other comparable employees. In 1986 McCoy's salary increase and bonus were smaller than comparable management employees at WGN. In 1987 McCoy "was the only management employee who did not receive a salary increase or a bonus" (Vitanovec Aff. 1-2).

Throughout 1986 and 1987 WGN-TV experienced serious financial difficulties and declining revenues. WGN offered evidence that due both to its financial situation and to its evaluation of McCoy's performance, in June 1987 FitzSimons carried out a plan initiated by his predecessor, Loughlin, to hire an additional person to take on some of McCoy's responsibilities. Then, following a concept that had been utilized in two other WGN-owned television stations, FitzSimons restructured McCoy's job into two positions: Director of Creative Services and Director of Promotions and Publicity.

FitzSimons then hired Pam Pearson ("Pearson"), age 30, who was experienced in the field,⁵ to take over the duties of Director of Creative Services, while he transferred McCoy to the newly-created position of Director of Promotions and Publicity. McCoy's new responsibilities included "enhancing station image in the community through the use of community activities, public relations and the local press" (McCoy Dep. Ex. 5). His salary and benefits in the new position remained the same. FitzSimons told McCoy (id. 92) that he "hoped to make it a full-time position but he wasn't sure because of" WGN's financial problems (id. 92-93):

So, he couldn't guarantee that this job would last. He couldn't guarantee how long the job would last, but he had hoped it would be a permanent position.

FitzSimons also told McCoy (FitzSimons Dep. 66) that although "it was highly unusual ... to add another position" during a financially slow period, the station was giving McCoy the chance to justify its inclusion in the budget by proving that the new position "would contribute to the success of the station."

WGN uses the statements of Ellis and FitzSimons to show that the decision to transfer McCoy was motivated not only by McCoy's unsatisfactory performance but also by WGN's desire to restructure McCoy's job to get better quality output from him. And as the recital to this point has shown, WGN's financial difficulties played a significant part in the decision as well.

Those ongoing financial difficulties quickly led to a more Draconian decision, reached in early September 1987, to make substantial personnel cuts. In January 1988 WGN eliminated approximately 40 positions, including the entire Department of Community Affairs and McCoy's position. Only two employees in the Community Affairs Department were retained and transferred to other positions, and they were respectively aged 56 and 61.

It is undisputed that McCoy knew that he would be discharged and his position eliminated as early as September 1987, when FitzSimons told McCoy that due to financial constraints the position would not be continued past the current year. In that same month FitzSimons offered to assist McCoy in finding other work. During the months of October and November 1987 McCoy did seek other employment. Indeed, although McCoy was not told directly by his supervisor FitzSimons about his pending discharge until September, he claims that Tom Leach of WGN's accounting department told him in July 1987 that his new job was not in the budget for 1988. McCoy further opines (McCoy Aff. 3) that "WGN never planned to budget that new position."

As for McCoy's short tenure as the Director of Promotions and Publicity, WGN offered evidence through the statements of FitzSimons and Ellis that McCoy's performance in that post did not meet WGN's expectations. In rebuttal McCoy states that he was not made aware of WGN's impressions of his performance and that, contrary to WGN's statements, he had prepared several proposals, plans and strategies in his new job.

Knowing that WGN was not planning to continue his position or his employment into 1988, McCoy filed a charge of age discrimination on November 23, 1987 with the Illinois Department of Human Rights ("IDHR") and at the Equal Employment Opportunity Commission ("EEOC"). On January 11, 1988 FitzSimons confirmed to McCoy that his job would not be in the 1988 budget due to WGN's financial situation. At that time FitzSimons told McCoy that he could stay until the end of January 1988. When he was informed of the termination of his employment McCoy replied that he "wasn't surprised" (McCoy Dep. 110). He believed (id. 111) that the information about the termination of the job position that FitzSimons have given him in September was still valid. On January 22, 1988 McCoy was discharged. McCoy admitted that throughout his employment at WGN his age was never discussed by any members of management.

After McCoy's discharge his prior responsibilities were divided among other employees. Those responsibilities that did not revert back to the Creative Services Department were performed by an outside consultant who was then 55 years old. Some few of the functions that had previously been performed by the eliminated Departments of Community Affairs and Promotions and Publicity began to be performed by a new employee, age 29. Although McCoy's work was parceled out in that way, McCoy's position was eliminated and was not restaffed.

On February 2, 1988 McCoy added a retaliation count to his complaint before IDHR and EEOC. On May 30, 1989 he filed this timely action.

McCoy's Transfer

McCoy's first claim is that he was involuntarily transferred from his job as Director of Creative Services to the position of Director of Promotions and Publicity on the basis of his age. McCoy can avoid summary judgment on that count in one of two ways:

1. by demonstrating the existence of a genuine issue of material fact by presenting direct evidence that his age motivated WGN's decision to transfer him, or 2. absent such direct evidence, by showing such a material fact issue at any stage of the familiar ping-pong approach dictated by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), rearticulated 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).⁶

McCoy offers no direct evidence that even suggests his age was a factor in his transfer. Indeed, there is no evidence that McCoy's age was ever discussed by WGN's management. Accordingly, McCoy attempts to avoid summary judgment by using the McDonnell Douglas indirect method of proof.⁷ In that...