Levine v. Fairleigh Dickinson University

• Decision Date: 18 May 1981
• Docket Number: No. 80-1932,80-1932
• Citation: 646 F.2d 825
• Parties: 25 Fair Empl.Prac.Cas. 803, 25 Empl. Prac. Dec. P 31,729 Dr. Saul LEVINE, Appellant, v. FAIRLEIGH DICKINSON UNIVERSITY, a non-profit corporation of the State of New Jersey, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 825

646 F.2d 825

25 Fair Empl.Prac.Cas. 803,

25 Empl. Prac. Dec. P 31,729

Dr. Saul LEVINE, Appellant, v. FAIRLEIGH DICKINSON UNIVERSITY, a non-profit corporation of the State of New Jersey, Appellee.

No. 80-1932.

United States Court of Appeals Third Circuit.

Argued Dec. 4, 1980.

Decided April 16, 1981.

As Amended May 18, 1981.

Marc S. Friedman, Kalb, Friedman & Siegelbaum, Newark, N. J., Joseph D. Luksch (argued), Michael R. Zeller, James M. Donegan, Vedder, Price, Kaufman, Kammholz & Day, New York City, for appellant.

Ronald H. DeMaria (argued), Lum, Biunno & Tompkins, Newark, N. J., for appellee.

Before ADAMS, GARTH and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Dr. Saul Levine, formerly a professor at Fairleigh Dickinson University, and plaintiff below, appeals from an order granting the University's motion for summary judgment in a suit brought under the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 621-634 (1976 & Supp. III 1979) (ADEA). Dr. Levine alleged the ADEA was violated when his nontenured appointment was reduced in May 1979 from full-time to part-time solely on the basis of his age, then 66. The district court concluded that Dr. Levine was not then an employee covered by the Act because he had "retired" from the University in June 1978 when his tenure was revoked. We conclude that Dr. Levine was in fact an employee covered by the ADEA on the relevant date and that the exemption covering faculty members under a contract of unlimited tenure is inapplicable in this case.

II.

Prior to 1978, Dr. Levine was a tenured professor on the faculty of Fairleigh Dickinson University. The employment relationship between the faculty and the University was governed at that time by a contract between the University and the Fairleigh Dickinson University Council of American Association of University Professors Chapters, the certified labor organization representing the full-time faculty at the University. ¹ Under the contract, faculty members were required to relinquish their tenured status at the end of the academic year in which they became 65 years old. The contract provided that a faculty member whose tenure had thus been removed might nonetheless be appointed to a nontenured, full-time position for a one-year period, and, after that one-year appointment had expired, might be appointed to a nontenured part-time teaching period during the academic years in which he or she reached 67 and 68. To receive either of these types of nontenured appointments, the individual was required to meet a standard of a continuing high level of teaching effectiveness and academic specialization in an area needed by the department and justified by student enrollment. ²

Dr. Levine reached the age of 65 in December 1977 and, pursuant to the contract, his tenure was revoked at the end of that academic year in June 1978 and he was then appointed to a one-year full-time position for 1978-79. He held this full-time nontenured appointment on January 1, 1979, the effective date of the amendments to the ADEA of 1967. Those amendments, inter alia, extended the scope of that statute, which previously applied to persons ages 40 to 65, to protect persons up to 70 years of age against age discrimination. Age Discrimination in Employment Act Amendments of 1978, Pub.L.No.95-256, § 3(a), 92 Stat. 189, codified at 29 U.S.C. § 631(a) (Supp. III 1979). In May 1979, however, the University refused to continue Dr. Levine in his then full-time nontenured status and he was informed that he would receive only a part-time faculty appointment for the 1979-80 academic year.

Dr. Levine commenced the present action against the University in December 1979. He alleged that the University's refusal to appoint him to a full-time position for the 1979-80 academic year was a decision based solely on a contractual provision that discriminated explicitly on the basis of age and that there was no applicable statutory exemption. He requested injunctive relief, back pay and damages.

Since the facts were not in dispute, Dr. Levine moved for summary judgment against the University which made a cross-motion for summary judgment. ³ Following a hearing, the district court ruled in an oral opinion that Dr. Levine had retired prior to the effective date of the ADEA amendments, and it denied Dr. Levine's motion and granted summary judgment to the University. ⁴

III.

Section 4(a) of the ADEA, 29 U.S.C. § 623(a) (1976), makes it unlawful for an employer

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; (or)

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age "

Dr. Levine and the University agree that Dr. Levine's position was reduced from full-time to part-time in May 1979 solely on the basis of his age. An involuntary reduction of teaching load, with its concomitant reduction in pay, based solely on age patently falls within the statutory proscription. The University however argues that Dr. Levine retired at the close of the 1977-78 academic year before the statutory amendments became effective and that Dr. Levine was no longer an employee under the protection of the ADEA on January 1, 1979 (the effective date of the amendments). The University characterizes its retirement policy as one that "in effect allowed (Dr. Levine) to phase out his actual teaching over three years" after June 1978. Brief for Appellee at 15.

The issue is clearly defined: Was Dr. Levine "employed" by the University on January 1, 1979 so that he was protected by the amendments to the ADEA which came into effect on that day and extended the Act's coverage to include individuals up to seventy years of age? Section 4(a) of the ADEA, 29 U.S.C. § 623(a) (1976), prohibits age discrimination by employers against employees and applicants for employment. The University candidly concedes Dr. Levine was employed by it on January 1, 1979, but contends he was employed in a retirement status. The Act makes no provision for a separate status of employment. The statutory definition of "employee" is not so limited and states that "(t)he term 'employee' means an individual employed by any employer " 29 U.S.C. § 630(f) (1976). ⁵ This broad language accords with the congressional intent to prohibit employment discrimination against "any individual" in an employment relationship with an employer of the type defined in the Act. 29 U.S.C. § 623(a) (1976). See also id. § 621 (statement of findings and purpose). The University does not dispute that it is such an employer.

Dr. Levine's relationship with the University on January 1, 1979 had the characteristic features of employment. The relationship was the subject of a separate letter agreement between Dr. Levine and the University signed in the spring of 1978 which obligated Dr. Levine to perform specified services for the University; he was paid according to the services he rendered for the period of the contract. He received no retirement benefits for the same period but in fact continued to contribute to the retirement plan as any other employee of the University did. Pursuant to the collective bargaining agreement with the Council, his appointment to this one-year term was required to follow "the normal faculty status processes." Given these facts, we see no basis to accept the University's contention that Dr. Levine was no longer an employee for purposes of the ADEA just because he lost his tenure in 1978. Had the University actually retired Dr. Levine in 1978 when he reached the age of 65 by severing both his services and his compensation for current employment, then Dr. Levine would have no grounds for complaint under the ADEA which at that time did not protect employees beyond the age of 65. The mere fact that the amendments had been enacted before the loss of his tenure would not have given Dr. Levine any additional rights because the extended age provision of these amendments did not become operative until January 1, 1979. See Kuhar v. Greensburg-Salem School District, 616 F.2d 676 (3d Cir. 1980). But the University did not sever its relationship with Dr. Levine in mid-1978. Instead, it continued that relationship, albeit somewhat altered by a change in title and the loss of tenure, by continuing the essence of an employment relationship the exchange of services for pay. Therefore, the University cannot avoid its obligations under the ADEA by the simple formula of labeling an employee as retired.

The only reason given by the district court for its holding that Dr. Levine was not an employee within the ADEA was an analogy drawn between Dr. Levine's position and that of a "retired" federal judge. We find the comparison inapposite. Federal judges and other federal employees are not covered by the general provisions of the ADEA. 29 U.S.C. § 630(b) (1976). The statute which prohibits age discrimination against federal employees is inapplicable to the federal judiciary. See 29 U.S.C. § 633a (Supp. III 1979). Because of the constitutional guarantee of life tenure for federal judges with undiminished salary, U.S.Const. art. III § 1, the position of senior status federal judges cannot be analogized to Dr. Levine's situation.

Although this appears to be a case of first impression, we believe there is an appropriate analogy to be drawn from the status under the labor laws of employees labeled as "retired" but who continue in the employment relationship. In Allied Chemical & Alkali Workers, Local No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971), the Supreme Court held that the employer had no obligation under the ...