Passer v. American Chemical Soc.
| Decision Date | 11 June 1991 |
| Docket Number | No. 90-7166,90-7166 |
| Citation | 290 U.S.App.D.C. 156,935 F.2d 322 |
| Parties | 56 Fair Empl.Prac.Cas. 88, 56 Empl. Prac. Dec. P 40,849, 290 U.S.App.D.C. 156, 59 USLW 2764 Moses PASSER, Appellant, v. AMERICAN CHEMICAL SOCIETY, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 87-1244).
Raymond C. Fay, with whom Thomas R. Gibbon was on the brief, Washington, D.C., for appellant.
Jerome C. Schaefer, with whom Carl Roberts, was on the brief, Washington, D.C., for appellee.
Michael Keller, Attorney, E.E.O.C., with whom Donald R. Livingston, Acting Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, and Vincent J. Blackwood, Asst. Gen. Counsel, were on the brief, Washington, D.C., for amicus curiae urging that the District Court's judgment be reversed and the case be remanded to the District Court.
Before EDWARDS, BUCKLEY and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
The appellant, Dr. Moses Passer, brought this employment-discrimination action after his former employer, the American Chemical Society, forced him to retire on his 70th birthday and then cancelled a public event in his honor after it learned he had filed charges challenging his forced retirement. On appeal, Dr. Passer challenges three rulings of the District Court striking down his age-discrimination and retaliation claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621 et seq. (1988), and the District of Columbia Human Rights Act ("the D.C. Act"), D.C.CODE ANN. Sec. 1-2501 et seq. (Repl.1987). With regard to his age-discrimination claim under ADEA, he argues that the District Court erroneously applied a statutory exemption which permits employers to compel the retirement of "bona fide executive[s]" who are at least 65 years old. See 29 U.S.C. Sec. 631(c)(1) (1988). With regard to his reprisal claims under ADEA and the D.C. Act, Dr. Passer argues that the District Court erred in holding, as a matter of law, that an employer's cancellation of a public event honoring an employee cannot constitute a retaliatory act within the meaning of the federal and District of Columbia statutes.
Dr. Passer's appeal is meritorious on both counts. Therefore, we reverse the District Court's disposition of both his claims under the federal act. Finding alternative grounds, however, supporting the trial court's dismissal of Dr. Passer's reprisal claim under the D.C. Act, we affirm that portion of the District Court's judgment.
In 1964, Moses Passer left his job as a chemist at the University of Minnesota to begin a new career with the American Chemical Society ("ACS" or "the Society") at its Washington, D.C., headquarters. From the time of his hiring until his involuntary retirement in 1987, Dr. Passer served as the Director of ACS's Education Division, 1 where he was in charge of the Society's chemical education programs.
In accordance with pre-existing ACS policy, Dr. Passer was expected to retire no later than his 70th birthday in January 1987. On October 17, 1986, however, Congress amended ADEA, extending its protections for the first time to persons over age 70. See Age Discrimination in Employment Amendments of 1986, Pub.L. No. 99-592, Sec. 2(c), 100 Stat. 3342. As a result of these amendments, effective January 1, 1987, employers could not enforce mandatory retirement policies, except when acting pursuant to a bona fide, age-related occupational qualification, some other statutory defense, or one of the Act's specific exemptions.
In late November 1986, Dr. Passer informed ACS that he wished to continue working beyond his 70th birthday. ACS rejected this request and notified Dr. Passer that he would be replaced, as originally planned, on his next birthday. ACS contended that it was entitled to compel Dr. Passer's retirement, notwithstanding the extension of ADEA to persons of Dr. Passer's age, because he qualified as a "bona fide executive" within the meaning of a narrow exemption to the statute. Under this exemption, employers may require the retirement, at age 65 or older, of certain "bona fide executive[§ who are] ... entitled to an immediate nonforfeitable annual retirement benefit ... [of] at least $44,000." 29 U.S.C. Sec. 631(c)(1) (1988).
On January 30, 1987, when Dr. Passer turned 70, ACS terminated his employment. The next week, Dr. Passer filed charges of age discrimination against ACS with the U.S. Equal Employment Opportunity Commission ("EEOC") and the District of Columbia Office of Human Rights.
Dr. Passer's claims of retaliation arise from a related course of events. In the fall of 1986, ACS informed Dr. Passer that it was planning a special symposium in his honor at the Society's next annual membership meeting in early April 1987. This was, as both litigants readily acknowledge, a "rare and prestigious" laurel for an ACS employee; indeed, it was "one of the highest honors that could have been bestowed upon him by his peers." See Brief for Plaintiff-Appell[ant] Moses Passer ("Passer Br.") at 4, 14; Brief for Defendant-Appellee American Chemical Society ("ACS Br.") at 40. Eight distinguished chemists agreed to give papers on the occasion and an announcement of the event was provided to the several thousand ACS members planning to attend the annual conference. See Schedule of Events, ACS 193d Nat'l Mtg., Apr. 5-10, 1987, reprinted in Appendix ("App.") 93, 95, 96, 97.
Dr. Passer asserts that, following his termination in January, he looked forward with growing anticipation to the April symposium. By his account, the gathering of his professional peers from around the country at the symposium in his honor would provide an excellent opportunity to renew acquaintances and make contacts that might lead to new employment.
The ASC annual conference opened in Denver on Sunday, April 5, 1987. Late that afternoon, as Dr. Passer was preparing to leave Washington for the conference the next morning, he received a call at home from Ronald G. Dunn, his former superior at ACS. Mr. Dunn informed Dr. Passer that ACS was indefinitely postponing the Passer Symposium. According to Dr. Passer, Mr. Dunn said he "wanted me to have this information in case I might want to change my travel plans" for the following morning. See Declaration of Moses Passer at 3, Passer v. American Chem. Soc'y, Civ. Action No. 87-1244 (D.D.C. Apr. 6, 1989), reprinted in App. 85, 87. Dr. Passer then cancelled his plane reservations and did not attend the conference.
The following afternoon, one day before the scheduled event, ACS notified the other speakers who had agreed to participate in the Passer Symposium that the event was being cancelled. At the request of ACS, all of the speakers (including Dr. Passer) agreed to withdraw their papers so that the action could be announced as a "voluntary cancellation" by the Division of Chemical Education rather than as a "unilateral action" by the ACS Board. Id. at 4, reprinted in App. 88. ACS freely admits that its decision to cancel the symposium was prompted by Dr. Passer's filing of discrimination charges; it insists, however, that it was motivated simply by legal prudence and not by any desire to harm or publicly humiliate Dr. Passer. See ACS Br. at 42 (); Minutes of Executive Committee Meeting, ACS Division of Chemical Education (Aug. 29, 1987) ( that "[t]he Society's attorney said that the ACS Board would be remiss to allow this symposium to take place, since Mike [Passer] was suing ACS for age discrimination, and presentations made at the symposium might inadvertently affect the suit"), reprinted in App. 98.
Dr. Passer brought suit in District Court under ADEA and the D.C.Human Rights Act. He alleged that his forced retirement from ACS was "because of ... age" and therefore violative of both ADEA and the prohibition on age-based employment discrimination found in the D.C. Act; he also alleged that ACS's action in abruptly cancelling 2 the symposium in his honor was "in retaliation for his having filed an age discrimination complaint" and "made him essentially unemployable in his field," in violation of the anti-retaliation provisions set out in the federal and D.C. acts. See Passer Br. at 15.
The District Court, in a series of three decisions over two years, ruled against Dr. Passer on all counts. In its memorandum and order of November 18, 1988, the District Court dismissed Dr. Passer's challenge to his retirement under the D.C. Human Rights Act on the grounds that the Act prohibits age-based employment discrimination only against individuals between the ages of 18 and 65. Passer v. American Chem. Soc'y, 701 F.Supp. 1, 3 (D.D.C.1988); see D.C.CODE ANN. Secs. 1-2512(a)(1), 1-2502(2) (Repl.1987). Since Dr. Passer was 70 at the time of his discharge, he fell outside the D.C. statute's protections. Dr. Passer does not contest this ruling.
The District Court also dismissed Dr. Passer's reprisal claims under ADEA and the D.C. Act, ruling that "defendant's alleged conduct--cancelling a symposium honoring plaintiff--is not retaliation as intended by the [statutes]" Passer, 701 F.Supp. at 3. "Although in honor of plaintiff's service, the symposium was not part of plaintiff's past or future employment relationship with defendant, nor did the cancellation affect his relationship with potential employers," id., and therefore was not the sort of retaliatory penalty prohibited by the statutes. Accordingly, the trial court dismissed Dr. Passer's reprisal claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The District Court reaffirmed this ruling in a subsequent order denying Dr....
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