Spirt v. Teachers Ins. and Annuity Ass'n

• Decision Date: 29 September 1982
• Docket Number: D,1376 and 1377,Nos. 1375,s. 1375
• Parties: 29 Fair Empl.Prac.Cas. 1599, 30 Empl. Prac. Dec. P 33,072, 7 Ed. Law Rep. 269, 3 Employee Benefits Ca 2009 Diana SPIRT, Plaintiff-Appellant-Cross-Appellee, and Equal Employment Opportunity Commission, and American Association of University Professors, Intervenors-Appellees, v. TEACHERS INSURANCE AND ANNUITY ASSOCIATION, College Retirement Equities Fund, Long Island University, and Albert B. Lewis, Defendants-Cross-Appellants-Appellees. ockets 79-7715, 79-7737 and 79-7739.
• Court: U.S. Court of Appeals — Second Circuit

Page 1054

691 F.2d 1054

29 Fair Empl.Prac.Cas. 1599,

30 Empl. Prac. Dec. P 33,072, 7 Ed. Law Rep. 269,

3 Employee Benefits Ca 2009

Diana SPIRT, Plaintiff-Appellant-Cross-Appellee and Equal Employment Opportunity Commission, and American Association of University Professors, Intervenors-Appellees, v. TEACHERS INSURANCE AND ANNUITY ASSOCIATION, College Retirement Equities Fund, Long Island University and Albert B. Lewis Defendants-Cross-Appellants-Appellees.

Nos. 1375, 1376 and 1377, Dockets 79-7715, 79-7737 and 79-7739.

United States Court of Appeals Second Circuit.

Argued June 18, 1982.

Decided Sept. 29, 1982.

Kenneth D. Wallace, New York City, for plaintiff-appellant-cross-appellee.

William R. Glendon, New York City (Rogers & Wells, James B. Weidner, James W. Paul, Joseph A. Post, New York City, of counsel), for defendants-cross-appellants-appellees Teachers Ins. and Annuity Ass'n and College Retirement Equities Fund.

James Kearney, New York City (Webster & Sheffield, Donald J. Cohn, Miriam Lane Sparrow, New York City, Judith E. Tytel, Gen. Counsel, Long Island University, Greenvale, N. Y., of counsel), for defendant-appellee-cross-appellant Long Island University.

Neal Johnston, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of N. Y., Robert S. Hammer, Asst. Atty. Gen., New York City, of counsel), for appellee Albert B. Lewis.

William H. Ng, Atty., Washington, D. C. (Michael J. Connolly, Gen. Counsel, Philip B. Sklover, Associate Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, Washington, D. C., of counsel), for intervenor-appellee E. E. O. C.

John L. Pottenger, Jr., New Haven, Conn. (David M. Rabban, Washington, D. C., of counsel), for intervenor-appellee American Ass'n of University Professors.

Mary L. Heen, Isabelle Katz Pinzler, New York City, for American Civil Liberties Union Women's Rights Project and New York Civil Liberties Union as amici curiae.

Before NEWMAN and PIERCE, Circuit Judges, and CANNELLA, Senior District Judge. ^*

PIERCE, Circuit Judge:

It is plaintiff's claim, in this action which was filed in the United States District Court for the Southern District of New York more than eight years ago, that defendants Teachers Insurance and Annuity Association ("TIAA") and College Retirement Equities Fund ("CREF") have violated the equal employment provisions of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. ("Title VII"), by using sex-based mortality tables to calculate the benefits to which pension plan participants, including plaintiff, are entitled upon retirement. As a result of the use of such tables female retirees, who made contributions equal to those of similarly-situated males, receive a smaller monthly retirement benefit than do such male retirees. The district judge found that defendants' use of sex-based mortality tables violated Title VII, and granted summary judgment on this issue. He went on to hold, however, that TIAA--but not CREF--was exempted from compliance with Title VII by virtue of the McCarran-Ferguson Act, 15 U.S.C. Sec. 1011 et seq. Therefore, the district court enjoined CREF--but not TIAA--from using sex-based mortality tables to calculate the number of annuity units to which a retiree is entitled upon retirement on or after May 1, 1980, and enjoined Long Island University ("LIU"), plaintiff's employer, from either making contributions on behalf of its employees, or requiring its employees to contribute, to any retirement plan continuing to use sex-based mortality tables to calculate periodic benefits after June 1, 1980.

Plaintiff also claimed below that TIAA and CREF's methods of calculating retirement benefits violated the equal pay provisions of the Fair Labor Standards Act of 1964, 29 U.S.C. Sec. 206(d), and infringed her right to equal protection of the laws in violation of 42 U.S.C. Secs. 1983 and 1985. Finding no state action, the district judge granted defendants TIAA-CREF's motion for summary judgment on the Secs. 1983 and 1985 claims. Plaintiff's equal pay claims apparently were not the subject of motions for summary judgment below, and were not dealt with by the district court.

Defendants TIAA-CREF and plaintiff have appealed virtually every final order of the district court pursuant to 28 U.S.C. Sec. 1291.

We affirm in part and reverse in part, 475 F.Supp. 1298.

I. Facts

Plaintiff Diana L. Spirt is a tenured professor at Long Island University. LIU has adopted a retirement program managed by TIAA and CREF for its tenured professors and certain other employees. Participation in this program is mandatory for most eligible employees, including plaintiff.

TIAA and CREF manage retirement plans for faculty and staff members at 85% of all private four-year colleges and universities and over 40% of all public colleges and universities in the United States. More than 400,000 employees at approximately 2800 colleges and universities participate in the TIAA-CREF system. TIAA is a non-profit, legal reserve life insurance company which was organized in 1918 by the Carnegie Foundation for the Advancement of Teaching. It is " 'an educational service organization [providing] insurance annuities especially designed for employees of educational institutions in the United States and Canada.' " Peters v. Wayne State University, 476 F.Supp. 1343, 1346 (E.D.Mich.1979).

In 1952, TIAA's companion organization, CREF, was created in order to allow the investment of pension funds in financial instruments other than those traditionally permissible for annuity funds like TIAA. It, like TIAA, is a non-profit corporation, created by special act of the New York State Legislature.

Under the LIU retirement plan the employee and the university each contributes 5% of the first $4800 of an employee's yearly earnings to the pension fund. In addition, LIU contributes 11% of all earnings in excess of $4800, while the employee contributes 5% of all such earnings. Employees may also make voluntary additional payments into their pension fund accounts, on either a regular or an occasional basis. After receipt by TIAA-CREF, all contributions, plus minimum interest and dividends thereon, are immediately credited to individual employees' accounts as they accumulate. Pursuant to contract, all accumulated benefits are fully vested and fully "portable" at all times. Thus each employee has an immediate property interest in the benefits that accrue by virtue of the contributions made on the employee's behalf. In addition, each employee retains this ownership right if and when that employee moves on to other employment, either inside or outside the field of higher education. If a plan participant moves to another university that has adopted a TIAA-CREF retirement program for its employees, the new employer will pay its own pension contributions and those which it withholds from the employee's salary into the employee's existing account. If a plan participant obtains employment in a different field or at a teaching institution that does not use TIAA-CREF to provide its retirement program, that participant can nevertheless make additional contributions to the TIAA-CREF account on either a regular or occasional basis. Even if the employee fails to make such contributions, the participant will retain the right to receive, upon retirement, the benefits to which the participant is entitled by virtue of the contributions that were accumulated on his or her behalf. If a plan participant dies before retirement, the funds accumulated in the account are paid to a designated beneficiary as a death benefit.

After retirement, TIAA provides a life-long fixed dollar annuity, which pays the retired plan participant a specified and definite amount of benefit on a monthly basis. ¹ CREF, on the other hand, provides its annuitants with a variable annuity. Under this plan the annuitant receives a periodic payment, the amount of which reflects the results of CREF's investment policies. Plan participants may allocate their contributions between TIAA and CREF in whatever proportions they choose, and under certain conditions, they may transfer contributions from one system to the other. Upon an employee's retirement, both the amount of the fixed benefit to be received monthly from TIAA and the amount of CREF units to be used in determining the amount of benefits to which an employee will be entitled each year under the CREF variable-annuity program are calculated, and the retiree's contract with TIAA-CREF is "settled." ² This calculation of benefits is based in large part on life expectancy projections, which are determined, in turn, by use of sex-segregated mortality tables. Because women as a class live longer than men as a class, and women as a group are expected, as a result, to receive annuity payments over a longer period of time than similarly-situated men, the use of tables which reflect this male-female difference results in female retirees, who have made pension contributions that are equal to those made by similarly-situated men, receiving monthly payments that are smaller than those received by their male counterparts. ³ It is stipulated among the parties that "[c]ommencing at age 65, the amount of each periodic payment to male annuitants under the single life option is approximately 11.3% greater than the amount payable to female annuitants of the same age." JA 182. It is this result that is challenged as violative of Title VII.

II. Procedural History

Plaintiff initiated this action against TIAA and CREF by filing her complaint on April 15, 1974. On May 29, 1975, she moved for class certification and partial summary judgment. On August 20, 1975, defendants TIAA and CREF cross-moved for summary judgment and to dismiss the complaint pursuant to Rule 19, Fed.R.Civ.P., for failure to join the individual male annuitants in the TIAA-CREF system as indispensable parties to the litigation. On January 23, 1976, the motions for summary judgment were denied on the ground that...