Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-26-1997

Courtney v. LaSalle Univ
Precedential or Non-Precedential:

Docket
96-1512,96-1865




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Recommended Citation
"Courtney v. LaSalle Univ" (1997). 1997 Decisions. Paper 207.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/207


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Filed 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. Courtney
       CHARLES 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 District of California, sitting by designation.

                                2



       JOHN C. WRIGHT, JR.,
        ESQUIRE (ARGUED)
       DAVID E. BRIER, ESQUIRE
       Montgomery, McCracken, Walker
        & Rhoads
       123 South Broad Street
       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 reached 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
Employment 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 maintained 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
mandatory retirement age of sixty-five. In 1982, the
mandatory retirement policy was amended to require
retirement 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 1946, 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 taking
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
lifetime 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 Pennsylvania Superior Court reversed,
holding that the professors had entered into integrated
contracts for a term of one year only. Halpin v. La Salle
Univ., 

(Pa. Super. Ct. 1994). The Pennsylvania
Supreme Court denied discretionary review. 

(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 and
benefits 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 policy 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 under 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 appellate 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 judgment 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 Courtney'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.

                                5
We 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 review of the district court's decision is de
novo. Pennsylvania Coal Ass'n v. Babbitt, 

, 236
(3d Cir. 1995).2

DISCUSSION

I. APPLICATION OF THE ADEA TENURE EXEMPTION

The ADEA generally prohibits employers from
"discharg[ing] any individual 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
under 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 similar 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., 

, 831 (3d Cir. 1981) (deferring
to EEOC interpretation of tenured faculty exemption);
Crozier v. Howard, 

, 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 under which certain appointments in
       an institution of higher education are continued until
       retirement 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 limited 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
       other 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 appropriate tenure.

(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." 

The district court found that 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 procedure governing termination for cause, and
requires that any financial exigency (justifying termination) be bona
fide.

The absence of any of these factors does not preclude
a finding of "tenure" under the ADEA exemption. 

                                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 assured 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, 

, 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 adjudicated finally in a court of
competent jurisdiction from being relitigated in a
subsequent suit." Ammon v. McCloskey, 

, 553
(Pa. Super. Ct. 1995).

       Under Pennsylvania law, . . . a prior determination of
       a legal issue is conclusive 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., 

, 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, however,
regarding the length of the term for which employment was
contracted." Halpin v. La Salle Univ., 

, 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," 

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." 

La Salle contends that it does not seek to re-litigate
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. . . . The 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 the
       institution.

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 decided 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. 

. 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 the 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 issue is not essential if, under
some hypothetical resolution of the dispute, the issue could
have been avoided." 

(3d Cir.
1991) (applying Pennsylvania law). The state court held that
the only contract between Halpin and La Salle 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. 

. 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 established its official position and
made that position apparent to the employee by explicit
notice." Colgan v. Fisher Scientific Co. , 

,
1416-17 (3d Cir. 1991); see also Chardon v. Fernandez, 

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

(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 been 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. Equitable 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, 

, 1387 (3d Cir. 1994), we held that "where a
defendant 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 litigation, 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., 

, 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 his charge for that reason. To the contrary, in
his deposition Halpin testified that filing was delayed
because he hoped the state court contract action would
prompt 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
facts, 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 began 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 outside 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, 

(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., 

, 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 mandatory retirement policy--
each application of that policy to an employee constitutes a
discrete act of discrimination. 

see also Webb
v. Indiana Nat'l Bank, 

, 438 (7th Cir. 1991)
("Ordinarily, in the case of a continuing unlawful 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 the
present consequence of a one-time violation and the
continuation of the violation into the present.") (citations
omitted); O'Malley v. GTE Serv. Corp., 

, 821
(2d Cir. 1985); West v. Philadelphia Elec. Co. , 

,
754 (3d Cir. 1995) (applying the continuing violation theory
to 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 elements 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. 

. Situations
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 Technologies, Inc., 

(1989), the Supreme Court limited the application of the
continuing violation theory to policies that are "facially

                                12



discriminatory." 

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]." 

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." 

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 applicable, the date on which the
employer eliminates the unlawful provision." See 

(quoting EEOC v. Home Ins. Co. , 

, 713 (S.D.N.Y. 1982)); accord EEOC v.
Kentucky State Police Dep't, 

, 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 mandatorily retired."), cert. denied, 

(1996); but cf. Heiar v. Crawford County, 

, 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 continuing violation theory because it was
"facially legal," i.e., that on its face it complied with the
statutory exemption for tenured professors.4
Lorance 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 within
_________________________________________________________________

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.

n.5. Here too we have a facially
discriminatory policy, i.e., one that on its 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 discriminatory 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
retired 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 the
continuing 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 

. Because O'Malley was decided before Lorance and did not
consider the issues discussed in 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 Salle'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 with 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 

, 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 proceedings
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
       discrimination 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 September 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 effect.

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 different 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 application 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 Handbook 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 whole, 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 parties to a contract disagree upon its
       proper interpretation does not necessarily render the
       writing ambiguous.

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In view of this passage, I cannot gainsay the accuracy of
Judge Schwarzer's observation 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
concur 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
LaSalle. 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., 

, 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. The 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 exigencies of the institution. (AAUP Bul. SM
1964, p. 114).

                                18