decided: April 16, 1981; As Amended May 18, 1981.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 79-3488)
Before Adams, Garth and Sloviter, Circuit Judges.
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was not then an employee covered by the Act because he had "retired" from the University in June 1978 when his tenure was revoked.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.
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.*fn1 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.*fn2
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 Levine reached the age of 65 in December 1977 and, pursuant to the contract, his tenure was revoked at the end of that academic year in June 1978 and he was then appointed to a one-year full-time position for 1978-79.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.*fn3 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.*fn4
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 ...