957 F.2d 1446 (7th Cir. 1992), 90-3210, United States E.E.O.C. v. Century Broadcasting Corp.

Docket Nº:90-3210, 90-3440.
Citation:957 F.2d 1446
Party Name:UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, Cross-Appellant, v. CENTURY BROADCASTING CORPORATION and Century Chicago Broadcasting, Ltd., Defendants-Appellants, Cross-Appellees.
Case Date:March 23, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1446

957 F.2d 1446 (7th Cir. 1992)

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellee, Cross-Appellant,

v.

CENTURY BROADCASTING CORPORATION and Century Chicago

Broadcasting, Ltd., Defendants-Appellants, Cross-Appellees.

Nos. 90-3210, 90-3440.

United States Court of Appeals, Seventh Circuit

March 23, 1992

Argued June 4, 1991.

Rehearing and Rehearing En Banc Denied

April 28, 1992.

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Charlie Hammel-Smith, John P. Rowe, John C. Hendrickson, Julianne Bowman, Jean P. Kamp, E.E.O.C., Chicago, Ill., John F. Suhre E.E.O.C. Office of Gen. Counsel (argued), Washington, D.C., for plaintiff-appellee.

Roger L. Taylor (argued), Susan P. Jordan, Lisa Wetzel, Kirkland & Ellis, Chicago, Ill., for defendants-appellants.

Before COFFEY, RIPPLE, and MANION, Circuit Judges.

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RIPPLE, Circuit Judge.

Century Broadcasting Corp., through its subsidiary, Century Chicago Broadcasting, Ltd., (collectively "Century") owns a radio station in Chicago. In 1987, the station employed seven announcers, six of whom were more than forty years old and one who was only twenty-seven years old. In order to reverse the declining popularity of the station, Century hired new managers. The new managers changed the station's format and, in the process, fired all six of the announcers over forty years of age and replaced them with announcers under forty. The EEOC brought suit on behalf of four of the fired announcers against Century under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. A jury found in favor of the EEOC as to three of the claimants, but in favor of Century as to the fourth. Century moved for JNOV or, alternatively, a new trial. The EEOC moved to amend the judgment or for a new trial for the one unsuccessful claimant. The district court denied the cross-motions, and both parties appealed. For the following reasons, we affirm in part, reverse in part, and remand the case to the district court.

I

BACKGROUND

A. Statutory Background

The ADEA makes it unlawful "for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ... because of such individual's age." 29 U.S.C. § 623(a). ADEA protection is "limited to individuals who are at least 40 years of age." 29 U.S.C. § 631(a). An ADEA plaintiff must prove " 'that he would not have been discharged "but for" his employer's motive to discriminate against him because of his age.' " Karazanos v. Navistar Int'l Trans. Corp., 948 F.2d 332, 335 (7th Cir.1991) (quoting LaMontagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1409 (7th Cir.1984)); see also Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216, 1219 (7th Cir.1991). The ultimate issue at trial is whether "age was a determining factor " in the employer's decision. Brown v. M & M/Mars, 883 F.2d 505, 507 (7th Cir.1989) (emphasis added); Burlew v. Eaton Corp., 869 F.2d 1063, 1065 (7th Cir.1989).

An ADEA plaintiff may either attempt to meet the burden of proof "head on by presenting direct or circumstantial evidence that age was the determining factor in his discharge," or " 'as is more common, [ ]he may utilize the indirect, burden-shifting method of proof for Title VII cases originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later adapted to age discrimination claims under the ADEA.' " Karazanos, 948 F.2d at 335 (quoting Weihaupt v. American Medical Ass'n, 874 F.2d 419, 424 (7th Cir.1989)). Under the indirect, burden-shifting method, ADEA plaintiffs must first establish the elements of a prima facie case. As adapted to this case, those elements are: (1) they were in the protected group (between the ages of forty and seventy); (2) their job performance met the employer's legitimate expectations; (3) they were discharged; and (4) the employer sought replacements for them. Karazanos, 948 F.2d at 335. Once the employee establishes a prima facie case,

"this creates a rebuttable presumption of discrimination, and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee's discharge. If the employer is successful, the presumption dissolves, and the burden shifts back to the employee to show that the employer's proffered reasons are a pretext."

Id. (quoting Weihaupt, 874 F.2d at 427); see Burlew, 869 F.2d at 1066.

If the finder of fact determines not only that the employer was liable, but also that the ADEA violation was willful, it may award "liquidated damages" in an amount equal to the amount of compensatory damages awarded. 29 U.S.C. § 626(b). A violation is willful if "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited

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by the ADEA." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 128-29, 105 S.Ct. 613, 624, 625-26, 83 L.Ed.2d 523 (1985); see also Brown, 883 F.2d at 512; Burlew, 869 F.2d at 1064. Once liability and, as in this case, willfulness are found, the court has discretion to order equitable remedies in addition to back pay and liquidated double damages. The additional remedies include reinstatement or front pay. 29 U.S.C. § 626(b); Hybert v. Hearst Corp., 900 F.2d 1050, 1054-55 (7th Cir.1990).

B. Facts

Century owns a Chicago radio station, FM 100 (located at 100.3 on the FM band), which was known formerly as WLOO. WLOO was a very successful station in the 1970s. Its "beautiful music format feature[d] lush instrumentals and a deliberate announcing style." Appellant's Br. at 5. The music was primarily "instrumental cover songs": songs that were originally "vocals" recorded by popular artists but were re-made as "lush, fully orchestrated, violin-driven instrumentals" designed to "be acceptable to a beautiful music format." Tr. at 605, 597. Mixed in with the instrumental songs were "at the most four vocals per hour," most of which "were not done by the original artists, it would be a Vic Damone doing a Billy Joel song or the Ray Coniff Singers doing a Tony Orlando song, that type of thing." Tr. at 597, 782. The announcing style accompanying this music was "very slow, deliberate ... low key, ... in tune with the music," and was characterized by three-to-four second "pauses that existed between the songs and existed between the elements" which were inserted "so that the listeners could enjoy the music that much more." Tr. at 606, 599.

From 1980 through 1987, the beautiful music format steadily declined in popularity, and WLOO's market share in the key 25-54 year-old demographic group declined along with it. In August 1987 there was a "corporate shakeup" and, in September 1987, the new corporate management hired Gary Parks as program director for FM 100. On September 15, Parks met with the announcers and engineers and told everyone that he wanted "to tighten the pauses between the songs" and have "a brighter, more upbeat approach." Although the music would not change, he proposed changing the "liners" so as to replace the phrase "beautiful music" with "easy listening." 1 On September 29, Parks and the acting general sales manager, Dennis Douglas, prepared a "State of the Station" report for upper-level management. This report featured observations of current problems with the station and suggestions for improvement:

I have concluded that the station has been programmed the way Beautiful Music stations have been programmed for years, thusly sounding old and lethargic. The successful operators in this format have made the transition from beautiful music to easy-listening in the listeners' minds. This is done by replacing those old canons of programming with a brighter, more contemporary feel to the station. Traditionally, beautiful music stations have been top heavy with 65+ demographics. As these listeners die off, there are no bodies to replace them. Thusly, an eroding listener base develops.

With the Chicago market being saturated with Adult Contemporary stations, there are many outlets "asking for the order." Traditionally, these stations draw 25-34 & 35-44 demographics, which leaves the 45-54 cell looking for a station that pleases their ear. FM 100 would be a consideration, but that listener does not like the "old" sound. After all, no matter what our age, we all want to be considered "hip", or "with it."

I feel there is untapped potential for growth within the 40-49 demographics

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that can be achieved without alienating the older folks. This can be accomplished by giving the station a younger feel.

Defendant's Ex. 14 at 3.

On January 4, 1988, James Haviland was hired as the new general manager of FM 100. Soon after he arrived, Haviland began discussing with Parks the idea of going beyond the superficial change in "liners" and actually changing the whole format of the station from beautiful music to easy listening. The easy listening format, also known as "soft adult contemporary," 2 differs from the "beautiful music" format in both musical content and announcing style. Easy listening music consists of "virtually all vocals," "fewer strings," and original vocal artists: "Billy Joel again doing Billy Joel, not Vic Damone." Tr. at 600, 789, 802. Unlike the beautiful music format, easy listening features only "an instrumental or two an hour," and these instrumentals are "current instrumental hits done in a light jazz, new age type theme." Tr. at 600. The easy listening announcing style is "more up-beat, less laid-back," and "the pauses are gone, the songs bang right up next to each other. Sometimes a song will start to play while the other one is finishing." Announcers also back-sell or back-announce the music: "[t]hat's where they say 'you just heard Stevie Wonder and now we have Billy Joel coming up.' " Tr. at 606. In essence, the easy...

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