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. e du/thir dc ir c uit_1997/207Filed August 26, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 96

- 1512, 96

- 1572, 96

- 1865

96

- 1866, 96

- 1867 and 96

- 1868

DONALD J. COURTNEY, EXECUTOR AND PERSONAL

REPRESENTATIVE OF ROBERT J. COURTNEY, Ph.D.,

DECEASED ON OCTOBER 6 , 1996,

Appellant in Nos. 96

- 1512 and 96

- 1867

v.

LA SALLE UNIVERSITY

Appellant in No. 96

- 1865

(D.C. No. 92

- cv

- 03838)

CHARLES A. HALPIN, JR., J.D.,

Appellant in Nos. 96

- 1572 and 96

- 1868

v.

LA SALLE UNIVERSITY

Appellant in No. 96

- 1866

(D.C. No. 92

- cv

- 04079)

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

Argued: June 2, 1997

Before: BECKER and SCIRICA, Circuit Judges,

and SCHWARZER,* Senior District Judge

(Filed August 26, 1997)

DAWN RILEY COURTNEY,

ESQUIRE (ARGUED)

KEVIN J. O'BRIEN, ESQUIRE

Marks, O'Neill, Reilly,

O'Brien & Courtney, P.C.

1880 John F. Kennedy Boulevard

Suite 1200

Philadelphia, PA 19103

Attorney for Donald J. CourtneyCHARLES A. HALPIN, III,

ESQUIRE (ARGUED)

KEVIN J. O'BRIEN, ESQUIRE

Marks, O'Neill, Reilly,

O'Brien & Courtney, P.C.

1880 John F. Kennedy Boulevard

Suite 1200

Philadelphia, PA 19103

Attorney for Charles A.

Halpin, Jr., J.D.

_________________________________________________________________

*Honorable William W Schwarzer, Senior United States District Judge for

the Northern Dis trict of California, sitting by designation.

2

JOHN C. WRIGHT, JR.,

ESQUIRE (ARGUED)

DAVID E. BRIER, ESQUIRE

Montgomery, McCracken, Walker

& Rhoads

123 South Broad S treet

Philadelphia, PA 19109

Attorneys for La Salle University

OPINION OF THE COURT

SCHWARZER, Senior District Judge:

In June 1990, La Salle University retired Professor Robert

J. Courtney, over his objection, because he had rea ched the

age of seventy. A year later, Professor Charles A. Halpin

was retired for the same reason. Both professors had long

been aware that La Salle's policy mandated their retirement

at age seventy, but neither filed a charge with the Equal

Employme nt Opportunity Commission ("EEOC") until

November 1991. The question on this appeal is whether

their charges under the Age Discrimination in Employment

Act, 29 U.S.C. SS 621

- 634, ("ADEA") were timely filed.

FACTUAL BACKGROUND

La Salle has long mai ntained a mandatory retirement

policy. In 1963, the Faculty Handbook stated that

employment at the University would continue beyond age

sixty

- five only upon approval by the Board of Managers.

Four years later, the College Council voted to adopt a

mand atory retirement age of sixty

- five. In 1982, the

mandatory retirement policy was amended to requireretirement at the end of the year in which the professor

reached the age of seventy.

Professors Courtney and Halpin began teaching at La

Salle in 194 6, and received academic tenure ten years later.

In the mid

- 1960s both received letters announcing their

"appointment for life" to the rank of "professor."

3

In 1988, both Courtney and Halpin inquired about takin g

sabbaticals and were told that La Salle would not allow it

because they were nearing mandatory retirement. The

professors responded that the "appointment for life"

represented a contract of lifetime employment, and that

they did not have to retire. On May 20, 1988, La Salle sent

identical letters to each professor, stating that"the

University is not contractually obligated to employ you

beyond the end of the fiscal year in which you reach the

age of seventy." La Salle stated its position that the

professors were employed under contracts of one year only:

Your 1987

- 1988 contract, dated May 18 and executed

May 27, 1987, as well as your 1988

- 1989 contract . . .

clearly states: "This appointment, if accepted by you,

constitutes the entire agreement between you and La

Salle University concerning the term of your

appointment, rank and salary. . . .

Thus, your present faculty contract is a fully

integrated agreement and its term is only for the 1988

- 1989 academic year. It does not contain any of the

language used in the contracts of the early 60's.

Two years later, the professors filed suit in state court,

seeking a declaratory judgment that they had contracts of

li fetime employment. No charge of age discrimination was

filed with the EEOC at that time. The trial court found that

the professors did indeed have contracts of lifetime

employment (based on the 1960's "appointment for life"

language), but the Pennsylva nia Superior Court reversed,

holding that the professors had entered into integrated

contracts for a term of one year only. Halpin v. La Salle

Univ., 639 A.2d 37 (Pa. Super. Ct. 1994). The Pennsylvania

Supreme Court denied discretionary review. 668 A.2 d 1133

(Pa. 1994) (table).

Courtney turned seventy during the 1989

- 1990 school

year. In February 1990, La Salle formally notified him that,

consistent with University policy, he would be required to

retire at the end of the school year. Courtney was offered a

part

- time teaching position with reduced salary andbenefits for the fall of 1990, which he accepted.

4

Halpin turned seventy in January 1991. On February 1,

1991, La Salle notified him that school po licy required him

to retire at the end of the 1990

- 1991 school year, and

offered him a part

- time teaching position for the following

academic year, which he too accepted.

On November 29, 1991, Halpin and Courtney filed

charges of discrimination unde r the ADEA with the EEOC.

After the EEOC issued right

- to

- sue letters, they brought

two separate actions in the United States District Court for

the Eastern District of Pennsylvania. The complaints

alleged violations of the ADEA, in Count I based on the

mandatory retirement policy and the part

- time employment

policy, and in Count II based on an alleged pattern and

practice of discrimination against employees over seventy.1

La Salle moved for summary judgment, contending that

as a matter of law it falls within the ADEA exemption for

tenured professors, 29 U.S.C. S 631(d) (1993) (repealed by

P.L. 99

- 592, S 6(b)). The district court denied La Salle's

motion for summary judgment on this point, concluding

that La Salle was bound by the state appella te court's

holding that the professors' contracts were for a term of one

year only, and therefore did not meet the terms of the

exemption, which requires a contract or similar

arrangement for unlimited tenure.

La Salle also moved for summary judgmen t in both cases

based on 29 U.S.C. S 626(d)(2), which requires that a

charge of unlawful discrimination under the ADEA befiled

"within 300 days after the alleged unlawful practice

occurred . . . ." The district court granted summary

judgment on Courtn ey's claims, finding that the November

1991 charge was brought more than 300 days after his

claims accrued and that no equitable exception to the

limitations period applied. As to Halpin's claims, the district

court granted the motion on the mandatory retirement

claim, finding it untimely, but denied it on Halpin's claim of

discrimination based on the part

- time employment policy.

The district court certified the order in Halpin's case for

interlocutory appeal.

______________________________________ ___________________________

1. Plaintiffs did not appeal the dismissal of Count II.

5We have jurisdiction of Courtney's appeal under 28

U.S.C. S 1291, and of Halpin's appeal under 28 U.S.C.

S 1292(b). Our rev iew of the district court's decision is de

novo. Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236

(3d Cir. 1995).2

DISCUSSION

I. APPLICATION OF THE ADEA TENURE EXEMPTION

The ADEA generally prohibits employers from

"discharg[ing] any individ ual or otherwise discriminat[ing]

against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of

such individual's age." 29 U.S.C. S 623(a)(1). There is no

question that both Halpin and Courtney were discharged or

otherwise discriminated against because of their age: both

were required to retire solely because they were seventy

years old. La Salle contends, however, that the mandatory

retirements were legal because of a then

- existing exemption

un der the ADEA which provided:

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 simila r arrangement

providing for unlimited tenure) at an institution of

higher learning.

29 U.S.C. S 631(d) (1993) (repealed by P.L. 99

- 592, S 6(b)).

Because the ADEA does not define "contract of unlimited

tenure," we look to interpretation of the exemption in the

EEOC's regulations, 29 C.F.R. S 1625.11. Levine v. Fairleigh

Dickinson Univ., 646 F.2d 825, 831 (3d Cir. 1981) (deferring

to EEOC interpretation of tenured faculty exemption);

Crozier v. Howard, 11 F.3d 967, 971 & n.4 (10th Cir . 1993)

(same).

_________________________________________________________________

2. Because we remand his mandatory retirement claim, we leave the

disposition of his part

- time employment claim to the district court

without expressing a view on the merits of the court's earlier ruling on

that issue. As for Courtney's claim, it is in any event barred by the

statute of limitations.

6

"Unlimited tenure," according to the EEOC, means

an arrangement un der which certain appointments in

an institution of higher education are continued untilretirement for age o[r] 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 limite d to a specific term

(for example, one year or 10 years) will not meet the

requirements of the exemption.

29 C.F.R. S 1625.11(e)(1) (emphasis added). The

requirement that the contract (or similar arrangement) be

for "unlimited" tenure is essential to the exemption, even if

traditional protections of tenure3 are extended during the

limited term of appointment:

Employees who are not assured of a continuing

appointment either by contract of unlimited tenure or

o ther similar arrangement (such as a state statute)

would not, of course, be exempted from the

prohibitions against compulsory retirement, even if

they perform functions identical to those performed by

employees with appropri ate tenure.

Id. S 1625.11(f) (emphasis added). The EEOC also instructs

that the elements of unlimited tenure must be "clearly and

unmistakably met," and that "this exemption must be

narrowly construed." Id. S 1625.11(b).

The district court found t hat Professor Halpin was

afforded the protections of tenure under the 1940 AAUP

Statement. It further held, however, that La Salle could not

_________________________________________________________________

3. The regulation separately defines what " tenure" means by reference to

the 1940 American Association of University Professors ("AAUP")

"Statement of Principles" on academic tenure. The 1940 AAUP Statement

requires that any appointment be in writing, mandates academic

freedom, defines a proced ure governing termination for cause, and

requires that any financial exigency (justifying termination) be bona

fide.

Id. S 1625.11(e)(2). The absence of any of these factors does not preclude

a finding of "tenure" under the ADEA exemption. Id. S 1625.11 (e)(3).

7

establish compliance with the exemption because the

decision of the state appellate court established that the

term of Halpin's contracts was for one year only. We agree.

Because Halpin was "not assure d of a continuing

appointment either by contract of unlimited tenure or other

similar arrangement (such as a state statute)," 29 C.F.R.S 1625.11(f), the exemption does not apply.

We must give the state court's judgment the same effect

it would have in the Pennsylvania state courts. Mosley v.

Wilson, 102 F.3d 85, 92 (3d Cir. 1996). "Collateral estoppel,

sometimes referred to as issue preclusion, operates to

prevent a question of law or an issue of fact which has once

been litigated and adjudicate d finally in a court of

competent jurisdiction from being relitigated in a

subsequent suit." Ammon v. McCloskey, 655 A.2d 549, 553

(Pa. Super. Ct. 1995).

Under Pennsylvania law, . . . a prior determination of

a legal issue is conclusiv e in a subsequent action

between the parties on the same or a different claim

when (1) the issue was actually litigated; (2) the issue

was determined by a valid and final judgment; and (3)

the determination was essential to the judgment.

O'Leary v. Liberty Mut. Ins. Co., 923 F.2d 1062, 1065

- 66

(3d Cir. 1991).

The duration of Halpin's contract was the sole issue

before the state court: "Here, none of the parties contend

that employment was at will. There is dispute, h owever,

regarding the length of the term for which employment was

contracted." Halpin v. La Salle Univ., 639 A.2d 37, 39 (Pa.

Super. Ct. 1994). The state court accepted La Salle's

argument that "employment as a member of the faculty was

year by year," id. at 38, and held that while Halpin was

guaranteed the "rank" of professor for the rest of his life,

"the duration of employment in each contract was for a

period of one academic year." Id. at 40.

La Salle contends that it does not seek to re

- liti gate

issues decided in the state court because it seeks only to

establish the meaning of the term "academic tenure," which

it says was not an issue in the state court litigation. To this

end, La Salle argues that Halpin was guaranteed continued

8

employment based on the University's Faculty Handbook.

The Handbook states:

La Salle University subscribes to the principle of

academic tenure, that is, title to continued

employment. . . . Th e full

- time teacher under contract

with tenure may competently expect to hold his/her

position until he/she is retired for age or permanent

disability or separated for adequate cause under due

process or because of financial exigencies of theinstitution.

But we need not decide whether the Handbook gave Halpin

a contract of unlimited duration (subject, of course, to

mandatory retirement or dismissal for cause or forfinancial

exigency): the state court has decide d the issue. The

Pennsylvania Superior Court held that because the

contracts were "clear and unequivocal" on the subject of

duration, no extrinsic evidence would be permitted to vary

their meaning. Halpin, 639 A.2d at 39

- 40. And since 29

U.S.C. S 631( d) requires a contract or similar legal

obligation (e.g., a statute, 29 C.F.R. S 1625.11(f)) to

guarantee continued employment, it is no defense that

Halpin, as La Salle now asserts, had some sort of

amorphous "expectation" that his contract would be

renewed.

La Salle appears to argue that the state court could have

decided the case in its favor without reaching the issue of

the duration of the contracts, by holding only that Halpin

had no right to continued employment past age seventy.

While th e state court could have construed the evidence of

the parties' intent, including the Faculty Handbook, as

guaranteeing continued employment up to age seventy, it

did not decide the case on that basis. We have previously

rejected the "notion that an is sue is not essential if, under

some hypothetical resolution of the dispute, the issue could

have been avoided." O'Leary, 923 F.2d at 1067 (3d Cir.

1991) (applying Pennsylvania law). The state court held that

the only contract between Halpin and La Sall e specified a

period of employment of one academic year, and held that

extrinsic evidence was inadmissible to prove that La Salle

was obligated to more. Halpin, 639 A.2d at 39

- 40. These

9

determinations were not dicta, but were essential to the

holding of the case and are binding here.

Because at the time of Halpin's retirement, La Salle's

contract with him was limited to a term of one year, the

ADEA exemption did not apply. Accordingly, the district

court was correct in rejecting La Salle's claim to the ADEA

exemption for contracts of unlimited tenure.

II. APPLICATION OF THE STATUTE OF LIMITATIONS

A. Professor Halpin

The limitations period under the ADEA generally begins

"when the employer has e stablished its official position and

made that position apparent to the employee by explicitnotice." Colgan v. Fisher Scientific Co. , 935 F.2d 1407,

1416

- 17 (3d Cir. 1991); see also Chardon v. Fernandez, 454

U.S. 6 (1981) (per curiam); Delaware State College v. Ricks,

449 U.S. 250 (1980). Halpin was aware long before

February 2, 1991 (which was 300 days before his charge

was filed) that he would be required to retire at the end of

the 1990

- 1991 school year. The mandatory retirement

policy had bee n in place for over twenty years; the specific

policy he challenges was adopted in 1982. The 1988

correspondence between Halpin and La Salle told him that

he would have to retire in 1991; his 1990 state court

complaint showed that he understood exactly what La Salle

meant. Halpin's claim is therefore barred unless (1) it was

tolled by equitable estoppel or, (2) under the continuing

violation theory, the last date of accrual was when the

mandatory retirement policy was applied to him.

1. Eq uitable estoppel

Halpin's first contention is that La Salle "affirmatively

misled" him into believing that its retirement policy was

lawful. In Oshiver v. Levin, Fishbein, Sedran & Berman, 38

F.3d 1380, 1387 (3d Cir. 1994), we held that "where a

def endant actively misleads the plaintiff regarding the

reason for the plaintiff 's dismissal" the limitations period

will be tolled "until the facts which would support the

plaintiff 's cause of action are apparent, or should be

apparent" to a reasonably prudent person.

10

Halpin argues that he was led to believe that LaSalle's

retirement policy was exempt under the ADEA: that he was

at an institution of higher learning and serving under a

contract (or similar arrangement) of unlimited tenure, see

supra pp. 6

- 8. For this reason, he claims, he did not know

that he had an ADEA claim. Halpin asserts that it was not

until October 1991 that he learned, from the position taken

by LaSalle in the state court litigat ion, that he had a

contract for a one

- year term only. This revelation, he says,

prompted the filing of his charge with the EEOC in

November.

Halpin has the burden of establishing the equitable

tolling exception. Ross v. Buckeye Cellulose Corp., 980 F.2d

648, 661 (11th Cir. 1991) (plaintiffs have burden of

establishing equitable tolling in Title VII case). But Halpin

presented no evidence showing that he in fact believed that

La Salle's mandatory retirement policy was lawful and

delayed filing hi s charge for that reason. To the contrary, in

his deposition Halpin testified that filing was delayed

because he hoped the state court contract action wouldprompt a settlement. Moreover, the employment contracts,

which Halpin now asserts show that he did not have a

contract of unlimited tenure (taking him out of the ADEA

exemption), were signed by him annually for many years.

La Salle's 1988 letter to Halpin clearly disclosed its position

that his contract was for a one

- year term only. On these

f acts, no reasonable fact

- finder could find the facts to

support equitable tolling.

2. Continuing violation

The district court held that Halpin's claim based on

LaSalle's mandatory retirement policy accrued and the 300

day filing period bega n to run when La Salle informed him

that he would be involuntarily retired under the policy.

Halpin had notice of the mandatory retirement policy, and

its prospective application to him, by the time hefiled the

state court action in May 1990, well outs ide the 300 day

period. Halpin contends, however, that under the

continuing violation theory his charge was timelyfiled. The

district court rejected this argument, holding that the

theory did not apply in the absence of a "pattern or practice

11

of discrimination." The court reasoned that there was no

continuing violation because "the application of the

mandatory retirement policy . . . happened once."

The district court based its ruling on Delaware State

College v. Ricks, 449 U.S. 250 (1980), holding that "a

plaintiff may not rely on the continuing violation theory to

advance claims about isolated instances of discrimination

concluded in the past, even though the effects persist into

the present." E.E .O.C. v. Westinghouse Elec. Corp., 725 F.2d

211, 218 (3d Cir. 1983) (describing holding in Ricks)

(emphasis in original). In Westinghouse, we recognized that

where the challenge is to a continuing discriminatory policy

-- in this case, the age

- based man datory retirement policy

-- each application of that policy to an employee constitutes a

discrete act of discrimination. Id. at 219

- 20; see also Webb

v. Indiana Nat'l Bank, 931 F.2d 434, 438 (7th Cir. 1991)

("Ordinarily, in the case of a continuing unla wful practice,

every day that the practice continues is a fresh wrong for

purposes of the statute of limitations. . . . Ricks [did not]

abolish this principle. . . . We adopt the distinction made

in . . . EEOC v. Westinghouse Electric Corp. , between t he

present consequence of a one

- time violation and the

continuation of the violation into the present.") (citations

omitted); O'Malley v. GTE Serv. Corp., 758 F.2d 818, 821

(2d Cir. 1985); West v. Philadelphia Elec. Co. , 45 F.3d 744,

754 (3d Cir. 199 5) (applying the continuing violation theoryto a claim of disciminatory pattern and practice).

Application of the continuing violation theory requires

proof of the existence of a discriminatory policy and of its

application to plaintiff; both elemen ts are present here. The

time for filing a charge runs from the most recent

application of the policy to plaintiff, regardless of when he

received notice of the policy and its prospective effect on

him. Westinghouse Elec. Corp., 725 F.2d at 219. Situat ions

like Ricks and Chardon are distinguishable; there the

"alleged unlawful practice occur[s]" when the discriminatory

decision, e.g., to deny tenure, or to terminate the employee,

is made based on an impermissible factor.

In Lorance v. AT&T Techno logies, Inc., 490 U.S. 900

(1989), the Supreme Court limited the application of the

continuing violation theory to policies that are "facially

12

discriminatory." Id. at 912 n.5. The court reasoned that

where a policy is "facially nondiscriminatory and neutrally

applied," its invalidity is "wholly dependent on the alleged

illegality of [its adoption]." Id. at 911. In contrast, when the

employer has an express policy of terminating employees

based on their age , the policy "by definition discriminates

each time it is applied." Id. at 912 n.5. The timeliness of a

challenge to a mandatory retirement provision is therefore

determined "with reference to the earlier of either the last

day of employment, or, if ap plicable, the date on which the

employer eliminates the unlawful provision." See O'Malley,

758 F.2d at 821 (quoting EEOC v. Home Ins. Co. , 553

F.Supp. 704, 713 (S.D.N.Y. 1982)); accord EEOC v.

Kentucky State Police Dep't, 80 F.3d 1086, 1094 (6th Cir.)

(mandatory retirement statute "facially discriminates

between troopers younger than fifty

- five years of age and

those older than fifty

- five years of age"; thus, "a claim

becomes ripe when the statute is applied, [i.e.,] when the

trooper is mandatoril y retired."), cert. denied, 117 S. Ct.

385 (1996); but cf. Heiar v. Crawford County, 746 F.2d

1190, 1194 (7th Cir. 1984) (suggesting that notice, rather

than retirement, begins the 300 day limitations period to

challenge mandatory retirement policy).

La Salle concedes that its mandatory retirement policy

discriminates among its professors on the basis of age and

that it applied this policy to Halpin within the 300 day

charge

- filing period. But it contends that its policy was not

subject to the co ntinuing violation theory because it was

"facially legal," i.e., that on its face it complied with the

statutory exemption for tenured professors.4Lorance draws a distinction between facially neutral and

facially discriminatory policies. It provides no support for

the argument that a policy that discriminates on the basis

of otherwise prohibited characteristics should be treated as

though it were facially neutral because it appears on its

face (though not in fact, see supra, p. 12

- 13) to fall wit hin

_________________________________________________________________

4. The La Salle policy states: "Beginning June 30, 1982, retirement from

full

- time teaching shall be mandatory for ranked, tenured faculty as of

the last day of the fiscal year in which the faculty member reaches the

age of seventy."

13

a statutory exemption. Indeed the court's articulation of the

distinction is inconsistent with such a theory:

With a facially neutral system the discriminatory act

occurs only at the time of adoption, for each

application is nondiscriminatory (seniority accrues for

men and women on an identical basis). But a facially

discriminatory system (e.g., one that assigns men twice

the seniority that women receive for the same amount

of time served) by definition discriminates each time it

is applied.

Lorance, 490 U.S. at 912 n.5. Here too we have a facially

discriminatory policy, i.e., one that on i ts face sorts

employees according to age. That La Salle may have a

defense does not make it less discriminatory. La Salle's

argument ignores the distinction underlying Lorance,

between policies that can be attacked only on the basis of

the discriminat ory intent that motivated their adoption and

those whose legality turns not on the sponsor's intent but

on the prohibited effect of their application. There is no

issue in this case over whether La Salle adopted its policy

with a discriminatory intent; the question is solely whether

it violates the ADEA when it is applied.5

Halpin's EEOC charge was timely because he filed within

300 days of the date that the "alleged unlawful practice

occurred," i.e., the date on which La Salle mandatorily

retir ed him from full

- time employment.

B. Professor Courtney

Professor Courtney's circumstances are significantly

different from Halpin's. Like Halpin, Courtney knew of his

impending retirement far in advance of the actual date. But

when the policy was finally applied to him in 1991,

triggering the charge

- filing period even under thecontinuing violation theory, he did not assert a claim under

the ADEA. Instead, he waited almost a year and a half

_____________________________________________________ ____________

5. La Salle relies on O'Malley which, without analysis, rejected a

continuing violation theory where a policy was "facially proper." 758 F.2d

at 821. Because O'Malley was decided before Lorance and did not

consider the issues discussed i n our opinion, we do not find it

persuasive.

14

before filing the EEOC charge, well beyond the 300 days

permitted by 29 U.S.C. S 626(d)(2).

Courtney argues, as does Halpin, that he was actively

misled by La S alle's statement that he had "tenure." But as

with Halpin, no reasonable jury could find that Courtney

acted in reliance on La Salle's position,6 or that such

reliance was reasonable in light of the 1988 letter, which

explained La Salle's position wit h respect to the one year

contract.

The district court properly granted summary judgment

on Courtney's claims arising from his subsequent part

- time

employment as well. The only distinction between Courtney

and those he says are "similarly situated" is that he was

mandatorily retired at age 70 and they were not. Having

failed to challenge his mandatory retirement within 300

days, he is barred from complaining of the continuing

consequences the retirement has on his employment

status. See Ricks, 4 49 U.S. at 258, 101 S.Ct. at 504.

CONCLUSION

We AFFIRM the order granting summary judgment

against Courtney. We VACATE the order granting partial

summary against Halpin based on untimely filing of his

EEOC charge, and REMAND for further proceeding s

consistent with this opinion.

_________________________________________________________________

6. Courtney explained in his deposition why he delayed filing his charge:

Q: [W]hat prompted you to file this charge alleging age

discr imination in November of 1991?

A: My paycheck . . .When I started receiving the part

- time pay [in

September 1990].

Q: [W]hy did you wait until November of`91 to file this charge

when the change in your pay occurred in Se ptember of`90?A: We thought that we could reach a resolution with La Salle on

the basis of our contention versus their contention. When that

didn't happen, I filed with the EEOC.

Courtney Dep., 38

- 39.

15

BECKER, concurring.

The threshold question on this appeal is whether to give

collateral estoppel effect to the state court determination

that Courtney and Halpin had contract rights of a duration

limited to one year, and thus did not have the "unlimited

tenure" necessary to trigger the tenured faculty exemption,

29 U.S.C. S 631(d). I believe that the state court's decision

was wrong, but I also believe that Judge Schwarzer is

correct that we must give it collateral estoppel eff ect.

The state court appears to have accepted the plaintiffs'

tenure status. In fact, before engaging in its contractual

analysis, the state court even stated, albeit offhandedly,

that the plaintiffs held tenured positions. But the court

pursued a d ifferent interpretation of the significance of

tenure, concluding that tenure meant nothing more than

that plaintiffs were guaranteed the rank of professor for

their academic life.

It is not surprising that the state court did not engage in

the same analysis that we would have in an ADEA claim.

Courtney and Halpin did not raise ADEA claims in state

court, and La Salle did not argue the exemption since there

was no ADEA claim to defend at the time. Moreover, the

issue before us involves the applic ation of a federal statute

with its own set of governing regulations.

My concern about the result I must reach is compounded

by the fact that I am convinced that La Salle in fact

qualified for the ADEA exemption on the basis of the 1956

Faculty Hand book and the letters written by the University

to each plaintiff which, I believe, granted plaintiffs tenure

rights. And yet, with respect to those matters, the state

court said:

The contracts in the instant case, when construed as

a w hole, are clear and unambiguous. It was

unnecessary to refer to the language appearing in the

1956 Faculty Bulletin or letters by the university to

members of the faculty to ascertain the parties' intent.

The fact that parti es to a contract disagree upon its

proper interpretation does not necessarily render thewriting ambiguous.

16

In view of this passage, I cannot gainsay the accuracy of

Judge Schwarzer's observatio n that the state court has

already decided what the Handbook (and inferentially the

letters) in fact gave the professors. And I know of no

principle permitting us to avoid giving collateral estoppel

effect to erroneous decisions. My discomfiture about the

result is, however, allayed by the fact that it was La Salle

that contended in state court that Courtney and Halpin's

invitations of tenure meant nothing more than that they

were guaranteed the "rank of professor" for the duration of

their active academic life. In other words, La Salle may be

hoist on its own petard.

For the foregoing reasons, I am constrained to agree with

Judge Schwarzer that La Salle's policy is not covered by the

ADEA exemption for tenured faculty members. I therefore

co ncur in his opinion and in the judgment of the court.

17

SCIRICA, Circuit Judge, concurring.

I doubt that any party to this lawsuit ever believed that

Courtney and Halpin did not have tenured positions at

LaSa lle. Indeed the Pennsylvania Superior Court stated,

"Halpin and Courtney were granted tenure according to the

conditions set forth in the Faculty Bulletin."1 Halpin v.

LaSalle Univ., 639 A.2d 37, 38 (Pa. Super. Ct. 1994).

Whatever else tenure may mean, its essence is protection

from termination.

Yet the Pennsylvania Superior Court chose to define

tenure here as entitlement to rank only and duration of

employment from year to year only. Like Judge Becker I

believe their decision was wrong but like Judge Schwarzer

I believe we are bound to give it collateral effect.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

1. Th e Faculty Handbook provides:[t]he full

- time teacher under contract with tenure may competently

expect to hold his/her position until he/she is retired for age or

disability or separated for adequate cause under due process or

because of financial ex igencies of the institution. (AAUP Bul. SM

1964, p. 114).

18