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POLLIS v. NEW SCH. FOR SOC. RESEARCH

July 21, 1993

ADAMANTIA POLLIS, Plaintiff,
v.
THE NEW SCHOOL FOR SOCIAL RESEARCH, Defendant.



The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

 HAIGHT, District Judge:

 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. § 2000(e) et seq.; the Equal Pay Act ("EPA"), 29 U.S.C. § 206 (d) et. seq.; and § 296 of the New York State Human Right 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 non-tenured 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.

 Discussion

 The ADEA Claims

 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 (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, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (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 phrase "unlimited tenure" is not defined in the Act. However, the almost universally accepted definition of academic "tenure" is an arrangement under which certain appointments in an institution of higher education are continued until retirement for age of [sic; presumably should be "or"] 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)(2) goes on to recite the intention of Congress that the exemption "apply only where the minimum rights and privileges traditionally associated with tenure are guaranteed to an employee by contract or similar arrangement." Acknowledging that "tenure policies and practices vary greatly from one institution to another," the regulation observes that

 
the minimum standards set forth in the 1940 Statement of Principles on Academic Freedom and Tenure, jointly developed by the Association of American Colleges and the American Association of University Professors, have enjoyed widespread adoption or endorsement.

 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 exigencies.

 The Statement goes on to list specific examples of "acceptable academic practice": (1) a writing containing the "precise terms and conditions of every appointment;" (2) a probationary period not exceeding seven years; (3) granting to a teacher during the probationary period "the academic freedom that all other members of the faculty have"; (4) certain due process provisions in cases of termination for cause of a continuous appointment; and (5) the requirement that termination of a continuous appointment "because of financial exigency should be demonstrably bona fide."

 Having quoted the 1940 Statement of Principles on academic freedom and tenure, the EEOC regulations go on to observe at § 1625.11(3):

 
A contract or similar arrangement which meets the standards in the 1940 statement of Principles will satisfy the tenure requirements of the exemption. However, a tenure arrangement will not be deemed inadequate solely because it fails to meet these standards in every respect. For example, a tenure plan will not be deemed inadequate solely because it includes a probationary period somewhat longer than seven years. Of course, the greater the deviation from the standards in the 1940 Statement of Principles, the less likely it is that the employee in question will be deemed subject to "unlimited tenure" within the meaning of the exemption. Whether or not a tenure arrangement is adequate to satisfy the requirements of the exemption must be determined on the basis of the facts of each case.

 Turning to the facts of this case, the affidavits and exhibits demonstrate that Pollis was granted tenure by a vote taken at the Executive Faculty Meeting of the Graduate Faculty of Political and Social Science on December 22, 1965. Thereafter Pollis was eligible to vote on other tenure candidates. In 1988 Pollis chaired a faculty grievance committee hearing arising out of a denial of tenure. She twice served as chair of the political science department.

 The New School set forth guidelines and regulations concerning tenure in a form adopted by the Board of Trustees on February 5, 1947. See Ex. F to the Walzer affidavit sworn to on May 28, 1993. The business records of the New School show that this document repeatedly came to Pollis's attention. See affidavit of Vice Provost Robert Gates, verified June 23, 1993. The Board of Trustees promulgated a further statement on retirement in January 1988, which stated in part that until the ADEA changes in 1994 "we will continue to require that tenured faculty retire at age 70." See Ex. O to Walzer affidavit. Pollis denies every seeing this document. I do not think the point is material.

 Pollis contends that the New School tenure system does not meet the guidelines set forth in the EEOC regulations, and therefore does not qualify under the ADEA § 12(d) exemption. Pollis says that she never received a written agreement of the terms and conditions of her tenured appointment, as recommended by the 1940 Statement of Principles. She also denies the existence of "any standard rules and regulations embodying faculty rights and responsibilities," adding in support of that assertion that: "certainly there were no voted upon or circulated policies on retirement." Opposition brief at 32.

 These protestations do not rise to the level of establishing a triable issue of material fact. Accepting arguendo that the New School did not deliver to each tenured faculty member the sort of document contemplated by sub-paragraph (1) of the 1940 Statement of Principles, the EEOC regulations provide that "a tenure arrangement will not be deemed inadequate solely because it fails to meet these standards in every respect." Sensibly enough, the regulation focuses upon the substance of the arrangement between the institution and the faculty member, and not upon a particular form. There is no substance to Pollis's conclusory assertion that policies concerning mandatory retirement were "to be submitted to the faculties for consideration." Pollis Affidavit sworn to May 10, 1993 at P 3. Under familiar principles, the responsibility for such policy decisions is vested in the Board of Trustees.

 In short, the affidavits and exhibits submitted by the New School demonstrate the existence of tenure policies and practices which conform sufficiently closely to the 1940 Statement of Principles to qualify under the EEOC regulations and consequently to fall within the ADEA § 12(d) exemption.

 The parties debate at length in their affidavits and exhibits whether, as the New School contends, it promulgated and published a policy of requiring retirement of tenured faculty at age 70; or whether, as Pollis maintains, such policy was never promulgated or at least never made known to the faculty. There may be a dispute on the point, but under the governing law it is not material, and accordingly forms no impediment to summary judgment. Nothing in the ADEA limits the availability of the § 12(d) exception to institutions which maintain uniform policies of retirement. I agree with the district court in Koprowski v. The Wistar Institute of Anatomy and Biology, 819 F. Supp. 410, 16 E.B.C. 1477, 1479 (E.D.Pa. 1992), that "without further indication that Congress intended that such mandatory plans be in place, a Court should not read such a requirement into the statute." The exception involved in Koprowski is that contained in § 12(c)(1), 29 U.S.C. § 631(c)(1), but the analysis is the same. Under the plain wording of § 12(d) the New School is entitled to force the retirement "of any employee who has attained 70 years of age" and is tenured (emphasis added); the use of the adjective "any" militates against a construction that the exception is available only to institutions who apply such a policy to all similarly situated employees.

 Pollis is required by tactical litigation necessity to challenge the validity of the New School's tenure policies and practices. Her argument, if carried to its logical conclusion, would destroy the tenured status which she was granted in 1965, and that of all her colleagues. In point or fact, however, the New School's tenure policies and practices meet applicable academic standards, and Pollis herself has been a validly tenured member of the faculty since 1965. Had, at any time prior to the exigencies of this lawsuit, it had been suggested to Pollis that she was not a properly tenured member of the New School faculty, I think her reaction would have been forceful.

 It follows that the New School is entitled to summary judgment dismissing plaintiff's ADEA claim relating to her forced retirement.

 Pollis' alternative ADEA claim is that the New School violated the statute when it refused to grant her application for full-time, non-tenured employment. This claim assumes the validity of the § 12(d) compulsory retirement. Plaintiff's theory is that once she is involuntarily retired under the § 12(d) exception, her "application for a non-tenured position becomes a simple hiring case," Brief in opposition at 23, and the New School cannot reject her on the basis of age in the absence of a showing that "age is a bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation" of the School's business. See § 4(f)(1) of the ADEA, 29 U.S.C. § 623(f)(1); Western Air Lines v. Criswell, 472 U.S. 400, 86 L. Ed. 2d 321, 105 S. Ct. 2743 (1985).

 In aid of that argument, Pollis hypothesizes three individuals: a 71-year old professor laid off by another institution because of budgetary cutbacks; a 70-year old professor mandatorily retired by another institution; and Pollis herself, voluntarily relinquishing her tenured position at the New School at age 69 and then applying at age 70 for a non-tenured position. Each of those hypothetical professors, the argument runs, is immune under the ADEA from rejection on the ground of age, at least in the absence of a BFOQ.

 Assuming arguendo the correctness of the argument with respect to the three hypothetical individuals, it avails Pollis nothing because there is a material difference between each hypothetical and her own actual situation. Pollis was mandatorily retired by the New School in a valid exercise of the option conferred upon the institution by § 12(d) of the ADEA.

 Under Pollis's statutory construction, the New School is required to hire her back on a full time (albeit non-tenured) basis, without regard to her age, so long as a vacancy exists. The parties do not cite, and I have not found, a case accepting or rejecting that construction. But I do not think it is sound. In § 12(d) Congress explicitly extended to institutions of higher education the option of "compulsory retirement" of tenured faculty members reaching the age of 70. In common usage "retirement" means that the employer is quit of the employee and the employee is quit of the employer; their prior relationship is severed. "Retirement" is defined as "the condition of being retired, as from one's former occupation or office." The American Heritage Dictionary of the English Language (1976) at 1110. "Generally, an individual's employment status terminates upon retirement." Cohen v. Martin's, 537 F. Supp. 766, 771 n.11 (S.D.N.Y.), aff'd, 694 F.2d 296 (2d Cir. 1982) (construing the ERISA statute). Cf. Rowe v. Allied Chemical Hourly Employees' Pension Plan, 915 F.2d 266, 269 6th Cir. 1990) ("The Group 2 plaintiffs have not retired from their employment at the Ashland plant, but are merely continuing it with a different employer.").

 Pollis's construction of the statutory scheme would dilute § 12(d)'s compulsory retirement option to the more limited one of compulsory revocation of tenure, a reading which the plain wording of the statute does not allow. It also runs counter to the applicable EEOC regulation, which contemplates the continuing effect of the ADEA upon the relationship between an institution and a compulsorily retired tenured faculty member, but in a quite different context. 29 C.F.R. § 1625.11(g) provides:

 
An employee within the exemption can lawfully be forced to retire on account of age at age 70 (see paragraph (a)(1) of this section). In addition, the employer is free to retain such employees, either in the same position or status or in a different position or status:
 
Provided, that the employee voluntarily accepts this new position or status. For example, an employee who falls within the exception may be offered a nontenured position or part-time employment. An employee who accepts a nontenured position or part-time employment, however, may not be treated any less favorably, on account of age, than any similarly situated ...

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