Appeals from the United States District Court for the Eastern District of Wisconsin. No. 80 C 674 - Aaron E. Goodstein, Magistrate.
Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD Senior Circuit Judge.
Grace Dummert taught for the defendant Fox Point-Bayside School District (the "School District") for about thirty years, from approximately 1948 until she was forced to retire in 1979. The Equal Employment Opportunity Commission (the "EEOC") brought this action under sections 16(c) and 17 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 216(c) and 217, alleging that the School District had forced Mrs. Dummert to retire from her job as a teacher because of her age in violation of the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), 29 U.S.C. § 621 et seq. See 29 U.S.C. § 626(b). The parties filed cross motions for summary judgment as to liability. The district court, Hon. Myron L. Gordon, granted the Commission's motion and pursuant to an agreement of the parties referred the case to a magistrate for a determination of relief. The issue of whether the School District's action constituted a willful violation of the ADEA was tried to a jury, whose verdict in favor of the Commission is not challenged on appeal. The remaining issues were tried to the court.
Both parties have appealed. The only issues we need consider are whether the delay provision of the amendment to section 4(f)(2) of the ADEA, 29 U.S.C. § 623(f)(2), effected by section 2 of the Age Discrimination in Employment Act Amendments of 1978, Pub. L. No. 95-256, 92 Stat. 189 (the "1978 Amendments Act"), is applicable, and, if so, whether the School District is protected by the former section 4(f)(2) of the ADEA as interpreted in United Air Lines, Inc. v. McMann, 434 U.S. 192, 98 S. Ct. 444, 54 L. Ed. 2d 402 (1977). We conclude that the delay provision is applicable and that the School District's action is protected, and so reverse the district court.
The facts underlying the parties' motions for summary judgment are undisputed, and we adopt the district court's formulation of them:
Mrs. Grace Dummert, an elementary school teacher in the defendant school district for a number of years, reached the age of 65 on June 22, 1979. Several months prior to that date, Mrs. Dummert received a letter from Dellmont Lindbloom, superintendent of the school district, informing her that her teaching contract would probably not be renewed for the following school year. The basis of the superintendent's letter was the collectively bargained agreement between the school district and the Fox Point-Bayside Education Association, the union representing Mrs. Dummert and other teachers in area schools. Section 5.3.2 of the agreement contained the following provision:
"Tenure rights shall cease and any teacher shall be retired by the School Board at the end of the school year during which such teacher has at- tained his 65th birthday."
Mr. Lindbloom's letter, dated February 26, 1979, also informed Mrs. Dummert of her right to a conference with the school board on this matter. Mrs. Dummert did not want to retire at age 65, and she immediately requested a conference.
Prior to receiving Mr. Lindbloom's letter, Mrs. Dummert had become aware of the school district's intention to retire her, and she had contacted her association representative, Patrick Connolly, for assistance. On behalf of Mrs. Dummert, Mr. Connolly had written to the president of the school district, informing him that Mrs. Dummert did not wish to retire. In addition, Mr. Connolly had stated that the education association believed section 5.3.2 to be illegal, void, and unenforceable in light of the Age Discrimination in Employment Act and offered to release the defendant from its obligation to abide by that section of the agreement.
On the day following Mrs. Dummert's request for a conference regarding the non-renewal of her contract, a somewhat unfavorable evaluation was made of Mrs. Dummert by the principal of the school in which she taught. Several weeks later, Mrs. Dummert received final notice of the defendant's decision not to renew her teaching contract. Superintendent Lindbloom, the author of the notification letter, referred to her "relative level of teaching performance" as a significant factor in the board's decision and informed her of her right to request a hearing on the matter. In response to a letter from Mrs. Dummert, Mr. Lindbloom subsequently wrote to clarify his earlier letter, stating that the defendant's decision not to renew Mrs. Dummert's contract was based only on section 5.3.2, not on her performance. The defendant has retained this position throughout all further proceedings, and no other basis for Mrs. Dummert's termination is considered here.
At the hearing held by the school district on April 10, 1979, on the issue of Mrs. Dummert's retirement, the inquiry was limited to whether Mrs. Dummert fell within the mandatory retirement provision of the collective e bargaining agreement. No presentation was permitted on the question of the legality of section 5.3.2 or on the defendant's decision not to waive that provision as requested by the education association. After the hearing, the school. board decided to retire Mrs. Dummert based solely on her age and so advised her in a letter dated April 11, 1979.
The Age Discrimination in Employment Act applies to individuals who are between 40 and 70 years of age, 29 U.S.C. § 631(a), and makes it unlawful for an employer to:
"...discharge any individual or otherwise dis- criminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of ...