Lamb v. Scripps College

• Citation: 627 F.2d 1015
• Decision Date: 17 September 1980
• Docket Number: 79-3305,Nos. 79-3250,s. 79-3250
• Parties: 24 Fair Empl.Prac.Cas. 1010, 24 Empl. Prac. Dec. P 31,267 Ruth S. LAMB, Plaintiff-Appellant, v. SCRIPPS COLLEGE, Defendant-Appellee. Ruth S. LAMB, Plaintiff-Appellee, v. SCRIPPS COLLEGE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1015

627 F.2d 1015

24 Fair Empl.Prac.Cas. 1010,

24 Empl. Prac. Dec. P 31,267

Ruth S. LAMB, Plaintiff-Appellant, v. SCRIPPS COLLEGE, Defendant-Appellee.

Ruth S. LAMB, Plaintiff-Appellee, v. SCRIPPS COLLEGE, Defendant-Appellant.

Nos. 79-3250, 79-3305.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1980.

Decided Sept. 17, 1980.

Charles S. Vogel, Richard D. Fybel, Nossaman, Krueger & Marsh, Los Angeles, Cal., for Lamb.

Robert A. Siegel, O'Melveny & Myers, Los Angeles, Cal., for Scripps College.

Appeal from the United States District Court for the Central District of California.

Before SCHROEDER and FERGUSON, Circuit Judges, and MacBRIDE, ^* District Judge.

FERGUSON, Circuit Judge:

This action challenges the constitutionality of a California statute which permits, without requiring, the compulsory retirement by private employers of tenured private college professors aged 65 to 69. ¹ Plaintiff Ruth S. Lamb argues that the challenged statute violates the equal protection clause of the fourteenth amendment by distinguishing irrationally between tenured private college professors aged 65 to 69 and other employees, and between tenured private college professors aged 65 to 69 and those younger than 65 and older than 69. Lamb seeks reinstatement and monetary damages. We agree with the district court that the challenged provision satisfies the rational basis standard of equal protection review and therefore affirm the district court's dismissal of the action.

I.

When first enacted in 1972, California Labor Code § 1420.1(a) prohibited age-based employment discrimination against individuals between the ages of 40 and 64. Section 1420.1(a) was amended, effective January 1, 1978 ("the 1978 amendment") to extend protection to any individual "over the age of 40," thereby protecting, for the first time, individuals aged 65 and over. ² The protections afforded employees over age 65 by the 1978 amendment were narrowed, effective January 1, 1979, by an amendment to § 1420.15 of the Labor Code ("the 1979 amendment") providing the following two exemptions:

Nothing in this section or Section 1420.1 shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age but not 70 years of age, and who is either:

(a) Serving under a contract of unlimited tenure, or similar arrangement providing for unlimited tenure at an institution of higher education as defined by Section 120(a) (sic) of the Federal Higher Education Act of 1965, or;

(b) For the two-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profitsharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $27,000. (Emphasis added).

The 1978 and 1979 amendments to the California Labor Code parallel changes in the federal Age Discrimination Employment Act of 1967, 29 U.S.C. §§ 621-634 ("the ADEA"). Congress amended the ADEA in 1978, Act of Apr. 6, 1978, Pub.L. No. 95-256, § 3(a), 92 Stat. 189, codified at 29 U.S.C. § 631(c)(1), (d), to extend the upper ceiling for protection under federal law from age 64 to age 69, and to provide nearly identical exemptions from protection to those adopted in the 1979 California amendment:

Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age but not 70 years of age, and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $27,000.

Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age but not 70 years of age, and who is serving under a contract of unlimited tenure (or similar arrangement providing for unlimited tenure) at an institution of higher education (as defined by section 1141(a) of Title 20). (Emphasis added.)

Despite similarities in language, two significant differences exist between the 1979 California amendment and the parallel federal provisions. First, because federal law never protected individuals over age 69, it excludes all tenured private college professors over age 65 from protection against age-based employment discrimination. California law, on the other hand, protects all employees over age 40; thus, tenured individuals are exempted from protection at ages 65 to 69, but are protected thereafter. Second, the federal tenured employee exemption, unlike the California exemption, will be automatically repealed as of July 1, 1982.

After the filing of plaintiff Lamb's opening brief, the California Legislature eliminated these discrepancies by amending Labor Code § 1420.15, effective January 1, 1980 ("the 1980 amendment"), to provide that (1) prior to July 1, 1982 all tenured professors aged 65 and over will be exempted from protection, and (2) subsequent to that date all tenured professors aged 70 and over will be exempted. ³ The 1980 amendment thereby eliminates the age 69 ceiling as well as the difference in treatment between professors aged 65 to 69 and those 70 and over that existed under the 1979 amendment. It also brings California law into conformity with federal law after July 1, 1982. At that time, private tenured college professors will be protected, under both federal and California law, up to age 69 but not thereafter.

Plaintiff Lamb served Scripps College as a professor under a contract of unlimited tenure from 1958 until the conclusion of the 1977-78 academic year. Lamb celebrated her 65th birthday on April 19, 1978. At that time, the 1978 amendment to California Labor Code § 1420.1(a) made it unlawful for a private employer to retire any individual "over the age of 40" on the basis of age. This statute also required employers to permit an employee who indicated in writing a desire to continue working beyond the normal retirement date and who could demonstrate the ability to do so to continue employment. ⁴ Lamb's ability to continue working is not disputed. Despite written notices by Lamb as early as January 14, 1978 indicating her desire to continue employment beyond the age of 65, Scripps discharged her during the academic year ending June 30, 1978. By letter dated December 14, 1978, Scripps further notified Lamb that she was "retired" as of January 1, 1979 on the basis of the 1979 amendment to § 1420.15 which exempted tenured private college professors aged 65 to 69 from the protection against age-based employment discrimination provided for in the 1978 amendment.

After exhausting the administrative remedies afforded her by the State of California, Lamb filed this action. In proceedings before the district court, Scripps moved to dismiss for lack of jurisdiction over the subject matter and alternatively for failure to state a federal claim upon which relief could be granted. The district court dismissed Lamb's federal constitutional claim with prejudice on the ground that the challenged amendment satisfied the rational basis standard of equal protection review. The court also dismissed a pendent state law claim without prejudice. ⁵

II.

Scripps argues that because it is a private employer acting pursuant to a state statute that permits but does not require the conduct at issue, there is no state action for equal protection purposes. The district court found that there was sufficient state involvement to constitute state action, and Lamb argues in support of that conclusion. We do not reach the issue because even if we determined that there was state action, we would nonetheless find no equal protection violation. ⁶

The proper standard for reviewing the statute at issue here is clearly set forth in the decisions of the Supreme Court in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam), and Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). The Court in Murgia rejected an equal protection challenge to a Massachusetts law requiring uniformed police to retire at age 50. Noting that the aged do not constitute a suspect classification, and that there is no fundamental right to public employment, 427 U.S. at 312-14, 96 S.Ct. at 2566-67, the Court concluded that the rational basis test was the proper standard of review. On the basis of testimony regarding the demands of the job and the relationship between age and ability to perform, the Court held that the rational basis test was satisfied because the challenged statute rationally furthered the state's goal of assuring the physical preparedness of its uniformed police. Id. at 314, 96 S.Ct. at 2567.

More recently, in Vance v. Bradley, supra, the Court rejected a claim that Congress violated the equal protection component of the due process clause of the fifth amendment by requiring Foreign Service employees to retire at age 60, while permitting Civil Service employees to continue working until age 70. Noting, as in Murgia, that the challenged statute involved neither a fundamental right nor a suspect classification, 440 U.S. at 96-97, 99 S.Ct. at 942-943, the Court determined that the statute was valid if it was " 'rationally related to furthering a legitimate state interest.' " Id. at 97, 99 S.Ct. at 943, quoting Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 312, 96 S.Ct. at 2566. The Court then held that the challenged statute was valid because it was rationally related to furthering the goal of stimulating superior performance "by assuring that...