Courtney v. La Salle University

• Decision Date: 06 October 1996
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 1332, 73 Empl. Prac. Dec. P 45,284, 121 Ed. Law Rep. 56 . Courtney, Ph.D., Deceased on
• Court: U.S. Court of Appeals — Third Circuit

Page 499

124 F.3d 499

74 Fair Empl.Prac.Cas. (BNA) 1332,

73 Empl. Prac. Dec. P 45,284, 121 Ed. Law Rep. 56

Donald J. COURTNEY, Executor and Personal Representative of

Robert J. Courtney, Ph.D., Deceased on October 6, 1996, Appellant in Nos. 96-1512 and 96-1867, v. LA SALLE UNIVERSITY, Appellant in No. 96-1865.

Charles A. HALPIN, Jr., J.D., Appellant in Nos. 96-1572 and 96-1868, v. LA SALLE UNIVERSITY, Appellant in No. 96-1866.

Nos. 96-1512, 96-1572, 96-1865, 96-1866, 96-1867 and 96-1868.

United States Court of Appeals Third Circuit.

Argued June 2, 1997.

Decided Aug. 26, 1997.

Dawn Riley Courtney (argued), Kevin J. O'Brien, Marks, O'Neill, Reilly, O'Brien & Courtney, P.C., Philadelphia, PA, for Donald J. Courtney.

Charles A. Halpin, III (argued), Kevin J. O'Brien, Marks, O'Neill, Reilly, O'Brien & Courtney, P.C., Philadelphia, PA, for Charles A. Halpin, Jr., J.D.

John C. Wright, Jr. (argued), David E. Brier, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, for La Salle University.

Before: BECKER and SCIRICA, Circuit Judges, and SCHWARZER, ^* Senior District Judge.

OPINION OF THE COURT

SCHWARZER, Senior District Judge:

In June 1990, La Salle University retired Professor Robert J. Courtney, over his objection, because he had reached the age of seventy. A year later, Professor Charles A. Halpin was retired for the same reason. Both professors had long been aware that La Salle's policy mandated their retirement at age seventy, but neither filed a charge with the Equal Employment Opportunity Commission ("EEOC") until November 1991. The question on this appeal is whether their charges under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, ("ADEA") were timely filed.

FACTUAL BACKGROUND

La Salle has long maintained a mandatory retirement policy. In 1963, the Faculty Handbook stated that employment at the University would continue beyond age sixty-five only upon approval by the Board of Managers. Four years later, the College Council voted to adopt a mandatory retirement age of sixty-five. In 1982, the mandatory retirement policy was amended to require retirement at the end of the year in which the professor reached the age of seventy.

Professors Courtney and Halpin began teaching at La Salle in 1946, and received academic tenure ten years later. In the mid-1960s both received letters announcing their "appointment for life" to the rank of "professor."

In 1988, both Courtney and Halpin inquired about taking sabbaticals and were told that La Salle would not allow it because they were nearing mandatory retirement. The professors responded that the "appointment for life" represented a contract of lifetime employment, and that they did not have to retire. On May 20, 1988, La Salle sent identical letters to each professor, stating that "the University is not contractually obligated to employ you beyond the end of the fiscal year in which you reach the age of seventy." La Salle stated its position that the professors were employed under contracts of one year only:

Your 1987-1988 contract, dated May 18 and executed May 27, 1987, as well as your 1988-1989 contract ... clearly states: "This appointment, if accepted by you, constitutes the entire agreement between you and La Salle University concerning the term of your appointment, rank and salary...."

Thus, your present faculty contract is a fully integrated agreement and its term is only for the 1988-1989 academic year. It does not contain any of the language used in the contracts of the early 60's.

Two years later, the professors filed suit in state court, seeking a declaratory judgment that they had contracts of lifetime employment. No charge of age discrimination was filed with the EEOC at that time. The trial court found that the professors did indeed have contracts of lifetime employment (based on the 1960's "appointment for life" language) Courtney turned seventy during the 1989-1990 school year. In February 1990, La Salle formally notified him that, consistent with University policy, he would be required to retire at the end of the school year. Courtney was offered a part-time teaching position with reduced salary and benefits for the fall of 1990, which he accepted.

but the Pennsylvania Superior Court reversed, holding that the professors had entered into integrated contracts for a term of one year only. Halpin v. La Salle Univ., 432 Pa.Super. 476, 639 A.2d 37 (1994). The Pennsylvania Supreme Court denied discretionary review. 668 A.2d 1133 (Pa.1994) (table).

Halpin turned seventy in January 1991. On February 1, 1991, La Salle notified him that school policy required him to retire at the end of the 1990-1991 school year, and offered him a part-time teaching position for the following academic year, which he too accepted.

On November 29, 1991, Halpin and Courtney filed charges of discrimination under the ADEA with the EEOC. After the EEOC issued right-to-sue letters, they brought two separate actions in the United States District Court for the Eastern District of Pennsylvania. The complaints alleged violations of the ADEA, in Count I based on the mandatory retirement policy and the part-time employment policy, and in Count II based on an alleged pattern and practice of discrimination against employees over seventy. ¹

La Salle moved for summary judgment, contending that as a matter of law it falls within the ADEA exemption for tenured professors, 29 U.S.C. § 631(d) (1993) (repealed by P.L. 99-592, § 6(b)). The district court denied La Salle's motion for summary judgment on this point, concluding that La Salle was bound by the state appellate court's holding that the professors' contracts were for a term of one year only, and therefore did not meet the terms of the exemption, which requires a contract or similar arrangement for unlimited tenure.

La Salle also moved for summary judgment in both cases based on 29 U.S.C. § 626(d)(2), which requires that a charge of unlawful discrimination under the ADEA be filed "within 300 days after the alleged unlawful practice occurred...." The district court granted summary judgment on Courtney's claims, finding that the November 1991 charge was brought more than 300 days after his claims accrued and that no equitable exception to the limitations period applied. As to Halpin's claims, the district court granted the motion on the mandatory retirement claim, finding it untimely, but denied it on Halpin's claim of discrimination based on the part-time employment policy. The district court certified the order in Halpin's case for interlocutory appeal.

We have jurisdiction of Courtney's appeal under 28 U.S.C. § 1291, and of Halpin's appeal under 28 U.S.C. § 1292(b). Our review of the district court's decision is de novo. Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). ²

DISCUSSION

I. APPLICATION OF THE ADEA TENURE EXEMPTION

The ADEA generally prohibits employers from "discharg[ing] any individual or otherwise discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). There is no question that both Halpin and Courtney were discharged or otherwise discriminated against because of their age: both were required to retire solely because they were seventy years old. La Salle contends, however, that the mandatory retirements were legal because of a then-existing exemption under the ADEA which provided Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 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 learning.

29 U.S.C. § 631(d) (1993) (repealed by P.L. 99-592, § 6(b)). Because the ADEA does not define "contract of unlimited tenure," we look to interpretation of the exemption in the EEOC's regulations, 29 C.F.R. § 1625.11. Levine v. Fairleigh Dickinson Univ., 646 F.2d 825, 831 (3d Cir.1981) (deferring to EEOC interpretation of tenured faculty exemption); Crozier v. Howard, 11 F.3d 967, 971 & n. 4 (10th Cir.1993) (same).

"Unlimited tenure," according to the EEOC, means

an arrangement under which certain appointments in an institution of higher education are continued until retirement for age o[r] physical disability, subject to dismissal for adequate cause or under extraordinary circumstances on account of financial exigency or change of institutional program. Adopting that definition, it is evident that the word "unlimited" refers to the duration of tenure. Therefore, a contract (or other similar arrangement) which is limited to a specific term (for example, one year or 10 years) will not meet the requirements of the exemption.

29 C.F.R. § 1625.11(e)(1) (emphasis added). The requirement that the contract (or similar arrangement) be for "unlimited" tenure is essential to the exemption, even if traditional protections of tenure ³ are extended during the limited term of appointment:

Employees who are not assured of a continuing appointment either by contract of unlimited tenure or other similar arrangement (such as a state statute) would not, of course, be exempted from the prohibitions against compulsory retirement, even if they perform functions identical to those performed by employees with appropriate tenure.

Id. § 1625.11(f) (emphasis added). The EEOC also instructs that the elements of unlimited tenure must be "clearly and unmistakably met," and that "this exemption must be narrowly construed." Id. § 1625.11(b).

The district court found that Professor Halpin was afforded the protections of tenure under the 1940 AAUP Statement. It further held, however, that La Salle could not establish compliance with the exemption because the decision of the state appellate court established that the term of Halpin's contracts was for one year only. We agree. Because Halpin was "not assured of a...