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PASSER v. AMERICAN CHEM. SOCY.

August 29, 1990

MOSES PASSER, Plaintiff,
v.
AMERICAN CHEMICAL SOCIETY, Defendant



The opinion of the court was delivered by: HARRIS

 This matter is before the Court on defendant's motion for summary judgment. Plaintiff contends that he was compelled to retire at age 70 in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. § 623 (West 1985 & Supp. 1990). Defendant moves for summary judgment on the grounds that plaintiff falls within an exemption to the ADEA which permits compulsory retirement if certain conditions are met. For the reasons set forth below, defendant's motion is granted.

 Plaintiff Moses Passer was employed by defendant American Chemical Society (ACS) from 1964 until his mandatory retirement on January 30, 1987, plaintiff's 70th birthday. Plaintiff was Director of ACS's Education Division from 1982 until his retirement.

 The American Chemical Society, a non-profit corporation chartered by Congress in 1937, provides the government with information and advice in the field of chemistry, and advances chemistry in general. The 140,000 members of ACS include chemists, chemical engineers, and students. In 1987, ACS had a budget of approximately $ 130 million and employed approximately 1,900 individuals.

 The ACS is divided into two co-equal branches: the Chemical Abstracts Service Division in Columbus, Ohio, and the Washington Operations. Some 1,600 individuals are employed in the Columbus, Ohio, office, with approximately 300, including plaintiff, being employed in the national headquarters in Washington, D.C. In 1987, the Washington office received a $ 50 million budget allocation, while the Columbus operations were budgeted the remaining $ 80 million.

 The American Chemical Society is governed by officers and a 15-member board of directors comprised of ACS members. An executive director oversees the day-to-day management of the entire organization and reports directly to the board. A deputy executive director heads each of the Washington and Columbus branches, and both report directly to the deputy executive director of the ACS.

 The Chemical Abstracts Service Division of the ACS is comprised of several sectors. *fn1" In Washington, operations are also comprised of several sectors, including the Education Division, which was under plaintiff's direction. *fn2"

 Each sector is headed by a director who reports to their respective operation's deputy executive director. Thus, plaintiff, as Director of the Education Division, reported to the Director of Washington Operations. The Education Division was divided into three departments: Educational Services; Research & Development; and Educational Materials. Each of the department heads reported directly to plaintiff.

 Plaintiff was scheduled for mandatory retirement on his 70th birthday. However, in late November 1986, plaintiff informed his superiors that he wished to remain employed at ACS in his current or a comparable position. Plaintiff's superiors told him that he would have to retire, especially since his successor had already been hired.

 Consequently, plaintiff brought this action alleging that he was compelled to retire at age 70 in violation of the ADEA. Defendant has moved for summary judgment, asserting that plaintiff fell within the exemption to the ADEA which permits the compulsory retirement of employees: (1) who have reached the age of 65; (2) who, for the two years prior to retirement, were employed in a bona fide executive or a high policymaking position; and (3) who are eligible for aggregate annual retirement benefits of at least $ 44,000 per year. *fn3"

 Plaintiff argues that summary judgment would be inappropriate because there are disputed issues of fact as to whether he functioned as a bona fide executive. Plaintiff also denies meeting the retirement income test.

 II. Discussion

 Under Rule 56(c) of the Federal Rules of Civil Procedure, a court must grant summary judgment if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court makes this determination by inquiring whether there are any genuine factual issues that can be resolved only by a finder of fact, since they may reasonably be resolved in favor of either party. Id. at 250. The substantive law governing a case identifies those facts which are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Id. at 248.

 In order to establish that Dr. Passer was a bona fide executive, the defendant must show that plaintiff met the bona fide executive criteria set out in 29 C.F.R. § 541.1 (1989) and 29 C.F.R. § 1625.12 (1989). See 29 C.F.R. § 1625.12(d)(1)-(d)(2). *fn4"

 The Court concludes that summary judgment is appropriate, given the parties' agreement on the objective attributes of plaintiff's position as Director of ACS's Education Division. See Breckenridge v. Bristol-Myers Co., 43 Empl. Prac. Dec. (CCH) P36,989, at 46,800 (S.D. Ind. Feb. 16, 1987). When the substantive law is applied to these attributes, plaintiff clearly satisfies the bona fide executive requirements, thereby precluding a possible finding that defendant violated the ADEA.

 A. Plaintiff Satisfies the Bona Fide Executive Criteria of 29 C.F.R. §§ 541.1(a) through (e)

 (1) Section 541.1(a) : A bona fide executive's "primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department . . . ."

 For purposes of § 541.1(a), primary duty "means, the major part, or over 50 percent, of the employee's time. Thus, an employee who spends over 50 percent of his time in management would have management as his primary duty." 29 C.F.R. § 541.103. While plaintiff maintains that up to 35 percent of his time was spent performing "programmatic"/non-managerial functions, under the regulation it is clear that his primary duty was indeed the management of the Education Division.

 Plaintiff does not dispute that the Education Division was a customarily recognized department within ACS's organizational structure. See Pltf's Ans. to Request for Admissions (Pltf's Adm.) at 23, 24. Thus, there is no dispute that plaintiff's primary duty consisted of managing the ACS's Education Division, a customarily recognized department.

 (2) Section 541.1(b) : A bona fide executive "customarily and regularly directs the work of two or more other employees . . . ."

 Plaintiff has admitted on at least two occasions that he directly supervised the work of at least three employees while he was director of the Education Division; the Division employed approximately 25 individuals. Therefore, there can be no dispute as to whether plaintiff satisfied the requirements of ...


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