Oxman v. WLS-TV

• Decision Date: 09 May 1988
• Docket Number: No. 87-2065,WLS-T,D,87-2065
• Citation: 846 F.2d 448
• Parties: 46 Fair Empl.Prac.Cas. 1392, 46 Empl. Prac. Dec. P 37,970, 56 USLW 2707 Jonah OXMAN, Plaintiff-Appellant, v.efendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 448

846 F.2d 448

46 Fair Empl.Prac.Cas. 1392,

46 Empl. Prac. Dec. P 37,970, 56 USLW 2707

Jonah OXMAN, Plaintiff-Appellant, v. WLS-TV, Defendant-Appellee.

No. 87-2065.

United States Court of Appeals Seventh Circuit.

Argued Jan. 13, 1988.

Decided May 9, 1988. ^*

Gilbert Feldman, Cornfield & Feldman, Chicago, Ill., for plaintiff-appellant.

Richard C. Bollow, Jenner & Block, Chicago, Ill., for defendant-appellee.

Before BAUER, Chief Judge, and CUDAHY, and COFFEY, Circuit Judges.

BAUER, Chief Judge.

Plaintiff-appellant Jonah Oxman appeals from the district court's grant of summary judgment in favor of defendant-appellee WLS-TV on his age discrimination claim. Oxman v. WLS-TV, 641 F.Supp. 652 (N.D.Ill.1986) ("Oxman III"). ¹ Oxman argues that the district court erred in concluding that, even if he could make out a prima facie showing of discrimination under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621, et seq. ("ADEA"), his proffered evidence failed to create a genuine factual issue that WLS-TV's legitimate reasons for terminating him were pretextual. For the reasons that follow, we reverse the district court and remand for further proceedings consistent with this opinion.

I.

Oxman worked at WLS-TV for about seventeen years before he was terminated in 1984 at age 61. He has a Bachelor of Arts degree in Radio, a Master of Science degree in Journalism, and, for a time, taught journalism at Roosevelt University in Chicago. Before joining WLS-TV as a newswriter in 1967, Oxman worked as a newswriter-producer at two other Chicago television stations. After working as a WLS-TV newswriter for four months, Oxman became a management employee in WLS-TV's newsroom, supervising the station's four film crews and the newsroom itself in the News Director's absence. In 1968, WLS-TV changed Oxman's title to Business Manager, and his duties expanded to include budgeting, scheduling, purchasing, and handling personnel and legal matters. For a six-month period in 1978, Oxman held an Executive Producer position, though his duties remained the same. Also, during a twenty-week strike in 1977, he worked as a newswriter and Associate Producer, producing two shows daily.

In 1981, WLS-TV established a "Northwest Bureau," the station's first and only satellite bureau, and named Oxman to manage it. Oxman's staff included two camera-crew members and a reporter. As Bureau Manager, Oxman earned more money and took on more journalistic responsibilities than he had as Business Manager, working with the station's assignment desk to develop stories and assure their coverage. Oxman never received any complaints about his performance at the bureau and received annual salary increases. In fact, in December, 1983, just before he was fired, Oxman received a seven-percent salary increase.

In the late summer of 1983, rumors circulated around WLS-TV that then-General Manager Dennis Swanson and then-News Director William Applegate wanted to close the Northwest Bureau as part of a plan to cut costs and improve efficiency at WLS-TV. Swanson, Vice President and General Manager of WLS-TV since July 25, 1983, had ultimate responsibility for all of the station's business operations, including the hiring and firing of station personnel. Applegate, who reported directly to Swanson, was responsible for gathering, producing, and directing news broadcasts. Although the two had discussed closing the Bureau, Oxman was told that a decision to close had not been made and that the company was pleased with his performance as Bureau Manager.

When Swanson assumed the position of Vice President and General Manager in 1983, WLS-TV's ratings were third among the major network stations in Chicago and, in some time slots, WLS-TV ranked fifth in the ratings among Chicago television stations, behind even the city's two major independent stations. Swanson believed that WLS-TV suffered from excessive costs, and one of his initial goals was to decrease the station's unnecessary expenses. To do so, Swanson reviewed each of the station's departments to identify and eliminate overstaffing. As part of this staff review, Swanson imposed a hiring freeze to prevent the automatic filling of nonessential positions as they became vacant. In this manner, fifteen vacant positions from various areas and departments of the station, including three positions from the news department, were eliminated from WLS-TV's 1984 budget. In addition, Swanson terminated two news coordinators at WLS-TV's Satellite News Channel when their positions were eliminated as a result of the sale of that channel in October, 1983.

In September, 1983, Applegate reassigned the Northwest Bureau's reporter, Kim Peterson, to do local morning newscasts on the network's "Good Morning America" broadcast, and did not replace her. Without Peterson, the bureau covered fewer stories. Then, in late December, 1983, Swanson decided to close the bureau as of January 27, 1984. At about this same time, Mike Lewellyn, WLS-TV's Director of Personnel, discussed with Oxman the possibility of early retirement, essentially offering him a year's salary to do so. Oxman refused the offer, stating that he was not ready to retire and that he wanted to continue working at WLS-TV.

On January 5, 1984, Applegate told Oxman that the station was closing the Northwest Bureau and that Oxman was going to be fired. In a meeting with Applegate five days later, Oxman reiterated his desire to continue working at WLS-TV in another capacity, but Applegate responded that no positions were available for Oxman. According to Oxman, Applegate told him that the news bureau had grown very complex and that if Oxman took a job as a producer, within a week the station would discover that Oxman could not do the job. Applegate also stated that the station was in the midst of a job freeze, and denied Oxman's suggestion that age was a factor in his termination. On January 27, 1984, WLS-TV closed the Northwest Bureau and moved the Bureau's camera crew back to the station's downtown Chicago offices. That same day, WLS-TV terminated Oxman.

When WLS-TV told Oxman that he was going to be fired in early January, 1984, there were two vacant newswriter positions in WLS-TV's news department. WLS-TV did not consider Oxman for one of the positions because the station was holding it open for its recently hired news anchor's personal newswriter, who eventually assumed the position on April 18, 1984. For the other vacant newswriter position, which really was that of assignment editor and involved no newswriting, Applegate recommended Mark LaMet, a 24-year-old "vacation relief" newswriter. Swanson rejected Applegate's recommendation, however, and hired a 31-year-old local newspaper editor for the position. In addition, between January 5, 1984 and March 1, 1984, another newswriter position opened at WLS-TV. Oxman was not considered for the job, however, and WLS-TV filled it with a 26-year-old. Also at the time of Oxman's termination, WLS-TV was considering creating a new position called Manager of Scheduling. Oxman was not considered for the position, which became a reality on May 9, 1984, even though he possessed the minimum qualifications required for the job. Oxman alleges that he was qualified for and willing to assume any of these positions.

II.

The crux of Oxman's complaint is that WLS-TV violated the ADEA when, after it eliminated Oxman's position and terminated his employment, it did not, because of his age, consider him for other available positions for which he was qualified. WLS-TV denies that it acted with discriminatory intent, claiming essentially that Oxman was an unfortunate casualty in the march toward a leaner, more efficient company.

In reaching its decision to grant summary judgment to WLS-TV, the district court found "a lack of evidence that the responsible decisionmaker," Swanson, "had the intent to discriminate on the basis of age." Oxman III, 641 F.Supp. at 654. As a result, the court doubted that Oxman could make out a prima facie showing of discrimination under the ADEA and held that, even if Oxman could "sneak by that barrier," he did not proffer enough evidence to create a genuine factual issue "that WLS-TV's legitimate reasons for terminating him were pretextual." Id. Oxman argues on appeal that he has made out a prima facie showing of discrimination, and that the district court erred in concluding that his proffered evidence does not create a genuine issue of material fact on the issue of pretext.

A.

Summary judgment is appropriate when the pleadings and supplemental materials present no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir.1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1393, 84 L.Ed.2d 782 (1985). In determining whether a genuine issue of material fact exists, the court must construe the facts alleged in the light most favorable to the party opposing the motion for summary judgment. Id. On review, we consider the entire record in the same light. Cedillo v. International Ass'n of Bridge & Structural Iron Workers, 603 F.2d 7, 11 (7th Cir.1979). We therefore must determine whether Oxman has proffered enough evidence to create a genuine issue of material fact that WLS-TV discriminated against him on the basis of his age in violation of the ADEA.

B.

Congress enacted the ADEA in 1967 to combat arbitrary age discrimination in employment. 29 U.S.C. Sec. 621 (statement of findings and purpose). Under the ADEA, an employer may not refuse to hire, discharge, or otherwise discriminate against any individual between forty and seventy years old with respect to his or her compensation, terms, conditions, or privileges of employment, because of that individual's age. 29 U.S.C. Secs. 623(a), 631(a). Thus, a...