McCoy v. WGN Continental Broadcasting Co.

• Decision Date: 26 February 1992
• Docket Number: No. 90-3693,90-3693
• Citation: 957 F.2d 368
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 350, 58 Empl. Prac. Dec. P 41,333, 60 USLW 2619 Ron G. McCOY, Plaintiff-Appellant, v. WGN CONTINENTAL BROADCASTING CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 368

957 F.2d 368

58 Fair Empl.Prac.Cas. (BNA) 350,

58 Empl. Prac. Dec. P 41,333, 60 USLW 2619

Ron G. McCOY, Plaintiff-Appellant, v. WGN CONTINENTAL BROADCASTING CO., Defendant-Appellee.

No. 90-3693.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 13, 1991.

Decided Feb. 26, 1992.

Peter R. Meyers (argued), Therese E. Zaller, Meyers & Meyers, Chicago, Ill., for plaintiff-appellant.

Brenda H. Feis, John W. Powers (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant-appellee.

Before CUDAHY and EASTERBROOK, Circuit Judges, and MOODY, District Judge. ^*

MOODY, District Judge.

The district court granted summary judgment to the defendant in this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. 758 F.Supp. 1231. The plaintiff appeals. 28 U.S.C. § 1291. We affirm.

I. FACTS

As this case is before us on the district court's summary judgment for defendant WGN Continental Broadcasting Company ("WGN"), we construe the facts as favorably to plaintiff Ron McCoy as the record will permit. E.g. Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 656 (7th Cir.1991) (en banc).

In 1983, when McCoy was forty-one years old, WGN hired him as a Director of Creative Services for one of its divisions, WGN Television. WGN never disciplined McCoy during his employment in this capacity. He and his department received several performance awards, and McCoy personally received raises and bonuses, though these were not as high as those awarded to his colleagues. He also received good performance evaluations, including one from an outside consultant, and he received praise from his supervisor at WGN, Joe Loughlin. However, Loughlin and Jim Ellis, who was Vice President of Creative Services for WGN's parent company, each had serious concerns about McCoy's performance. Loughlin indicated at least once in a personal interview that McCoy was not on the same "wavelength" as himself and might be on the way out as Director of Creative Services.

In 1987, when McCoy was forty-five, Dennis FitzSimons replaced Loughlin. FitzSimons transferred McCoy to the newly created position of Director of Promotions and Publicity. McCoy kept the same salary and benefits, but had substantially less responsibility. WGN hired a person not protected by the ADEA to replace McCoy as Director of Creative Services, paying her substantially more than McCoy had earned.

As Director of Promotions and Publicity, McCoy presented specific proposals, some of which were eventually implemented. Within one month of the transfer, however, a co-worker told McCoy that his new position was not budgeted for the following year. FitzSimons confirmed this fact within four months of the transfer. McCoy subsequently filed an administrative complaint with the Illinois Department of Human Services ("Department"), charging that his transfer was an age based demotion, and that he would be terminated based on his age.

WGN made McCoy's termination official early in 1988, when McCoy was forty-six, and eventually hired an outside consultant and a person not protected by the ADEA to perform some of McCoy's former tasks as Director of Promotions and Publicity. McCoy amended his action with the Department to claim retaliatory discharge. WGN never raised McCoy's performance as an issue in the state proceedings, advancing only financial reasons for transferring and discharging him. ¹

McCoy subsequently brought this ADEA action, claiming both (1) discriminatory demotion and discharge, and (2) retaliatory discharge. WGN moved for summary judgment. After studying McCoy's response, Judge Shadur held a hearing during which he expressed a strong view that summary judgment was inappropriate. After further briefing, however, he granted summary judgment to WGN. McCoy appeals the judgment below only insofar as it rejects his discriminatory demotion and discharge claim, having expressly abandoned his retaliatory discharge claim at oral argument.

II. ANALYSIS

This court performs a de novo review of summary judgments in the district courts. E.g. Karazanos v. Navistar Intern. Transp. Corp., 948 F.2d 332, 335 (7th Cir.1991). This court has recently stated the well settled standard controlling summary judgment as follows:

In order to uphold a grant of summary judgment, we must "view the record and all inferences drawn from it in the light most favorable to the party opposing the motion," Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990), and conclude there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). First Wisconsin Trust Co. v. Schroud, 916 F.2d 394, 398 (7th Cir.1990). Summary judgment is only appropriate when the record reveals that no reasonable jury could find for the nonmoving party. Doe v. Allied-Signal, Inc., 925 F.2d 1007, 1008 (7th Cir.1991).

Karazanos, 948 F.2d at 335. However, this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue. E.g. Stumph v. Thomas Skinner, Inc., 770 F.2d 93, 97 (7th Cir.1985) (summary judgment "notoriously inappropriate" where intent at issue); Visser, 924 F.2d at 660 ("Caution is required in granting summary judgment, especially under a statute that allows for trial by jury, as the age discrimination law does.").

The basic structure of the procedural law controlling ADEA claims is similarly well settled.

[A] terminated plaintiff's ultimate burden in an age discrimination case is to prove that he was discharged because of his age. The plaintiff need not prove that age was the sole factor motivating the employer's decision, only that age was a determining factor in the sense that he would not have been fired but for the employer's motive to discriminate on the basis of age.

Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988) (citing La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984)). There are two primary methods of proving age discrimination.

A plaintiff may prove age discrimination by either of two methods. She may try to meet her burden head on by presenting direct or circumstantial evidence that age was the determining factor in her discharge. Or, as is more common, she 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.

Oxman, 846 F.2d at 452. ² Where a plaintiff can offer no direct, "smoking gun" evidence of age discrimination, the burden-shifting method affords an alternate route to relief.

The employee must first establish a prima facie case of discrimination. The prima facie case has four elements. The employee must show: (1) he was in the protected class (persons between the ages of 40 and 70), (2) he was doing his job well enough to meet his employer's legitimate expectations, (3) he was discharged or demoted, and (4) the employer sought a replacement for him.

Karazanos, 948 F.2d at 335 (citing Weihaupt v. American Medical Ass'n, 874 F.2d 419, 427 (7th Cir.1989)).

If the employee is successful, 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.

Weihaupt v. American Medical Ass'n, 874 F.2d 419, 427 (7th Cir.1989) (citations omitted; quoted in Karazanos ).

Applying this law, McCoy could argue two acts by WGN present a jury question on the issue of discriminatory intent. The first is the transfer within WGN; the second is the discharge from his final position. However, McCoy does not want to strongly differentiate these acts. Rather, he maintains that the transfer and discharge were separate parts of a unitary act of discriminatory discharge--that the newly created position was merely a transition point from which WGN could fire him without eliminating a position integral to its normal operating structure. See Russell v. Keyes Fibre Co., 771 F.Supp. 951, 954 (N.D.Ind.1991) (modifying prima facie case to account for possibility of sham transfer on summary judgment motion); Stratton v. Handy Button Machine Co., 639 F.Supp. 425, 433 (N.D.Ill.1986) (declining on summary judgment to choose between inference of sham job and inference of attempt to rehabilitate employee).

McCoy's brief concedes there is no direct, "smoking gun" evidence of age discrimination to support his claim. ³ Nor is there any statistical evidence. Accordingly, he must proceed under the burden shifting method of proof and hope for an inference of discriminatory intent to arise from his prima facie case and his attack on WGN's reasons for firing him.

The district court held that McCoy failed to satisfy the second and third elements of the prima facie case. That is, the district court found that McCoy had not produced sufficient evidence to show a genuine issue as to whether he had performed his jobs satisfactorily or whether his transfer within WGN was a demotion. This court, however, concludes that the crux of the matter is the pretext inquiry at the end of the burden-shifting procedure. Accordingly, the court will assume, arguendo, that McCoy has satisfied the elements of his prima facie case with reference to both the transfer and the discharge.

To establish pretext, an employee must ultimately show by a preponderance of the evidence either "(1) that the employer was more likely motivated by a discriminatory reason, or (2) that the employer's proffered reason is unworthy of credence." Karazanos, at 336 (citing Johnson v. University of Wisconsin-Milwaukee, 783 F.2d 59, 63 (7th Cir.1986)). Where, as here, the...