Pollis v. New School for Social Research, 93 Civ. 3328.
| Decision Date | 21 July 1993 |
| Docket Number | No. 93 Civ. 3328.,93 Civ. 3328. |
| Parties | Adamantia POLLIS, Plaintiff, v. The NEW SCHOOL FOR SOCIAL RESEARCH, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Janice Goodman, New York City, for plaintiff.
Putney, Twombly, Hall & Hirson, New York City, for defendant (Michael T. McGrath, James E. McGrath, III, and Craig N. Bonnist, of counsel).
Plaintiff Adamantia Pollis is a tenured professor of political science on the graduate faculty of defendant The New School for Social Research (the "New School"). She was born on June 22, 1923 and so became 70 years of age on June 22 of this year.
In mid-December 1992, the Provost of the New School, Judith B. Walzer, advised Pollis that Pollis would be retired from her tenured appointment when she reached the age of 70. Walzer advised Pollis, and the New School maintains in this litigation, that for the past decade, the New School has implemented a policy of mandatory retirement at age 70. She invited Pollis to consider part-time employment as an adjunct professor.
In a subsequent exchange of correspondence, Pollis maintained that she could not legally be forced to retire at age 70. Walzer insisted that Pollis would be formally retired from the New School as of June 30, 1993. While this exchange was going on, Pollis wrote on March 2, 1993, to the Chair of the Political Science Department, to state that if the New School forced her to retire, she was applying by that letter "for a full-time teaching position at the rank of full professor in the area of comparative politics, beginning the academic year 1993-1994."
The New School has rejected that application on the ground that she could not, consistent with the institution's policies and practices, be eligible for a full-time teaching position, even if non-tenured, following her retirement from the faculty. The New School continues to hold out to Pollis part-time employment as an adjunct professor. As stated in greater detail infra, Pollis has accepted that appointment for the fall term.
Pollis contends that the New School's actions violate the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d) et seq.; and § 296 of the New York State Human Rights Law. On March 15, 1993 Pollis filed charges of age and sex discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). Sixty day later she commenced this action. The EEOC complaint is still pending.
Pollis' complaint in this Court contains five causes of action. She alleges that she is entitled to equitable relief under the ADEA, Title VII, and the All Writs Statute, 28 U.S.C. § 1651 (first claim); that the New School violated the ADEA by compelling Pollis to retire and failing to consider her for hiring on an annual contract basis as a nontenured faculty member (second claim); that the New School violated the EPA by denying Pollis the same salary as men who perform essentially the same duties (third claim); that the New School violated the New York State Human Rights Law (fourth claim); and that the New School breached Pollis' contract of employment (fifth claim).
By Order to Show Cause returnable on June 4, 1993, Pollis moved for a preliminary injunction restraining the New School from involuntarily retiring her at age 70. She bases her motion for preliminary equitable relief upon her ADEA and Title VII claims. The Equal Pay Act, New York State Human Rights Law, and breach of contract claims are not implicated by plaintiff's preliminary injunction motion. See plaintiff's brief on preliminary injunction motion at 5 n. 1.
Given the exigencies of time, the New School agreed to defer Pollis' forced retirement until July 21, 1993. This hiatus allowed less frenetic briefing on a motion interposed by the New School for partial summary judgment under Rule 56 F.R.Civ.P., dismissing counts one, two, four and five of the complaint.
The New School's motion focuses primarily upon the ADEA and Title VII claims Pollis asserts in those causes of action, since as noted those claims alone underlie Pollis' motion for a preliminary injunction. It is important for both parties to know as soon as possible whether a preliminary injunction will issue.
In a Memorandum dated July 8, 1993, the Court advised the parties that plaintiff's ADEA claims would be dismissed; that the Court rejected defendant's claims that it lacked subject matter jurisdiction over the Title VII claims; and that the Court would hear evidence on the issues of irreparable harm and balance of hardships. That evidentiary hearing has been concluded. This Opinion resolves all outstanding issues.
Pollis asserts two ADEA claims: (1) that the New School violated the statute by compelling Pollis's retirement from the tenured faculty when she reached the age of 70; and (2) that the New School committed a separate violation when it refused Pollis's application for full-time, non-tenured contract employment. The New School asserts that it is entitled to summary judgment dismissing both claims.
Under Fed.R.Civ.P. 56(c), the moving party is entitled to summary judgment if the papers "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." On such a motion, "a court's responsibility is to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 167 (2d Cir.1991) (citing Knight v. U.S. Fire Insurance, 804 F.2d 9 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)) (citation omitted). The responding party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The non-movant cannot `escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts,' ... or defeat the motion through `mere speculation or conjecture.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (citations omitted). While the party resisting summary judgment must show a dispute of fact, it must also be a material fact in light of the substantive law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
On this aspect of the case, the ADEA furnishes the governing law.
Section 12(d) of the ADEA, 29 U.S.C. § 631(d) (West.Supp.1993), provides:
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 education (as defined by section 1141(a) of Title 20).
It is common ground that the New School is "an institution of higher education" as that phrase is used in § 12(d) of the ADEA; and that Pollis has attained 70 years of age. Accordingly, the plain wording of the statute entitles the New School to retire Pollis against her will if she "is serving under a contract of unlimited tenure (or similar arrangement providing for unlimited tenure) ..." This is so, notwithstanding the fact that under the statutory scheme, the special mandatory retirement provision for tenured employees found in § 12(d) will be automatically repealed on December 31, 1993. See Pub.L. 99-592, 6(b), Oct. 31, 1986, 100 Stat. 3342, 3344.
While Pollis' status as a New School employee "serving under a contract of unlimited tenure" constitutes a "material fact" under the governing law, there is no genuine issue with respect to it.
The phrase "unlimited tenure" as used in § 12(d) of the ADEA has no statutory definition. However, the EEOC regulations, promulgated under statutory authority, deal with the concept at 29 C.F.R. § 1625.11(e)(1):
The 1940 Statement of Principles is then set forth in the regulation. It begins with this general statement:
(a) After the expiration of a probationary period, teachers or investigators should have permanent or continuous tenure, and their service should be terminated only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial...
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