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KLAIN v. PENNSYLVANIA STATE UNIV.

July 18, 1977

Ambrose KLAIN, Plaintiff,
v.
The PENNSYLVANIA STATE UNIVERSITY et al., Defendants



The opinion of the court was delivered by: HERMAN

 HERMAN, District Judge.

 Plaintiff has instituted the above captioned matter pursuant to § 1983, 42 U.S.C. and 28 U.S.C. § 1331 seeking to challenge the constitutionality of the mandatory retirement policy imposed on all faculty and staff of The Pennsylvania State University at age 65. *fn1" In our memorandum and order of November 15, 1976 we dismissed plaintiff's procedural due process claim in light of the recent United States Supreme Court decision in Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976). *fn2" We did conclude, however, that a cause of action predicated on the Equal Protection Clause of the Fourteenth Amendment was set forth in plaintiff's complaint and therefore allowed the parties to proceed on that issue.

 Subsequently on January 20, 1977 defendants filed a motion for summary judgment with respect to the equal protection claim, together with an affidavit of Ray T. Fortunato, Assistant Vice President for Personnel Administration at The Pennsylvania State University, in support of the motion. Plaintiff in turn has filed a brief in opposition to defendants' motion for summary judgment, accompanied by 14 affidavits in support of his position. Accepting plaintiff's averments as true and viewing all inferences to be drawn from the underlying facts contained in the pleadings and related documents in the light most favorable to plaintiff, for the reasons stated hereinafter we nevertheless conclude that no genuine issue as to any material fact upon which the resolution of this action depends has been raised. Accordingly, defendants are entitled to judgment as a matter of law.

 As a preliminary matter, defendants have filed a motion to strike the affidavits submitted by plaintiff and Fred Speaker on behalf of plaintiff in the above captioned case. We find plaintiff's affidavit, which sets forth his personal circumstances both prior to and following his forced retirement from the faculty at the Capital Campus of Penn State, to be relevant to the rational relation test of Penn State's mandatory retirement policy under our equal protection inquiry and therefore admissible under Rule 402, Federal Rules of Evidence. In light of the fact that the position of the American Medical Association has been set forth in the affidavit supplied by Dr. James Sammons, Executive Vice President of the A.M.A., and a far better and more appropriate representative of the A.M.A.'s position than is Mr. Fred Speaker, the Speaker affidavit should be stricken as inadmissible. Accordingly, defendants' motion to strike will be granted in part.

 In view of the fact that plaintiff's suit does not call into question the validity, under equal protection of the law principles, of a statute or regulation enacted or promulgated by the State, this court is confronted with the threshold question as to the existence of the necessary state action required under both the fourteenth amendment and § 1983. Based on the recent Third Circuit opinion in Braden v. University of Pittsburgh, 552 F.2d 948 (decided March 11, 1977), we conclude that The Pennsylvania State University (Penn State) has sufficient nexus with the State to constitute the requisite state action. Cf. 24 P.S. § 2531 et seq.

 The mandatory retirement policy adopted and effectuated by defendants is clearly subject to the less strict test of rationality under the two-tier equal protection model. The strict scrutiny test, requiring a compelling state interest to uphold the validity of the policy, is required only when the challenged classification impermissibly interferes with exercise of a fundamental interest or operates to the peculiar disadvantage of a suspect class. In this instance the right to employment with a State university cannot be construed to be a jeopardized "fundamental interest" for purposes of equal protection analysis, nor can the class of the faculty and staff of a State university over the age of 65 be said to historically be the subject of purposeful and discriminatory treatment constituting them a suspect class within the meaning of the equal protection clause of the fourteenth amendment. Cf. Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976). Our inquiry in this case, therefore is directed to whether or not the age 65 classification for the retirement of employees of a State institution of higher education is rationally related to furthering a legitimate state interest.

 In considering this question, however, it is incumbent upon the court only to decide whether the mandatory retirement policy at issue denies plaintiff equal protection under the law and violates the protection afforded under the fourteenth amendment; we are not called upon to address the wisdom of the policy or to assess the effectiveness and desirability of the policy in light of its stated objectives. Affidavits submitted by plaintiff; Cyril Brickfield, legal counsel to the National Retired Teachers Association and the American Association of Retired Persons; Dr. James Sammons, Vice President of the American Medical Association; Bernard Greenberg, Assistant Director of the Insurance, Pensions and Unemployment Benefit Department of the United Steelworkers of America; Robert C. Benedict, Commissioner to the Office for the Aging, Pennsylvania Department of Public Welfare; Leonard Cain, of the Institute of Aging at Portland State University, and Margaret Kuhn, National Convenor of the Gray Panthers amply describe the impact which forced, premature retirement has on society and particularly on the individual. While we are mindful of the devastating effect which compulsory retirement can have on the self respect and economic position of the individual, and while we realize as well that society is often times thereby deprived of a valuable human resource, our inquiry is complete once we determine that the challenged policy is "rationally related" to a legitimate state interest.

 In this instance the objective purportedly furthered by the mandatory retirement policy of Penn State is the following:

 
"[The] University's fundamental responsibility is to provide programs of instruction, research and public service and thus act as an instrument of self-renewal and development for the Commonwealth. To meet this responsibility, it is essential that the University promote and maintain excellence of performance by its faculty and staff." (Fortunato Affidavit.)

 The mandatory retirement policy ostensibly is directly related to this institutional objective of maintaining the quality of faculty and staff, and is intended to further this interest in the following ways:

 
(2.) Retirement creates job opportunities for present and new employees. With respect to present employees, retirement of more senior faculty and staff permits promotions to the vacated positions. Thus, mandatory retirement assists in retaining highly skilled personnel by assuring the existence of promotional opportunities at foreseeable times, rather than as random and unpredictable occurrence. Moreover, the University can adequately plan, well in advance, employee development and training programs to adequately prepare employees to fill the vacated positions.
 
Mandatory retirement also enables the University to plan for the employment of new personnel with newer disciplines and modern skills, in order to expand and update the institution's human resources, and thus continue to meet new challenges in the ...

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