Rehor v. Case Western Reserve University

Celebrezze, J.,

dissenting. While I can accept many of the general statements of the majority as correct statements of legal theory, when that theory is brought into contact with the specific facts of this case, I am unable to concur in the result.

The Court of Appeals made a simple case, which should have been decided on narrow equitable and contractual grounds, into a broad statement capable of affecting university-instructor relationships in many areas. The arguments before us were couched in the same far-reaching language.

The majority of this court has chosen to treat the issues in this case in the same vein. Unfortunately, Professor Rehor, with equity and long service on his side, is rejected in the creation of the cause celebre.

Professor Charles F. Rehor, until he was 64 or 65 years old, had a reasonable expectation that he would work at his chosen profession until he reached the age of 70. From the record, we find that Professor Rehor’s salary was $10,000 for the school year September 1966 to June 1967; $10,500 for September 1967 to June 1968; $12,500 for September 1968 to June 1969; $13,300 for September 1969 to June 1970; $13,800 for September 1970 to June 1971; $14,-300 for September 1971 to June 1972; and $14,800 for September 1972 to June 1973. Although Professor Rehor received a raise in each of the years from 1963 to 1973, the majority says that the $500 raises given in the last three years were adequate consideration for the change in his retirement date.

I find no evidence in the record that Professor Rehor accepted the modification in the term of his employment in return for the three $500 increments. Of course, the mere fact that the University offered the salary increments does not show that they were offered explicitly for that reason. Without an agreement supported by sufficient consideration there can be no effective modification. This is not to say that the University could not change the retirement age; only that those adversely affected must be com *236 pensated. Here there is no showing of an agreement, and the adequacy of the consideration is certainly in doubt.

The majority relies upon portions of the Statements of the American Association of University Professors. These Statements provide suggested limitations on the admitted power of the University to change its retirement policy; and the University explicitly adheres to those Statements. The majority accepts the University’s argument that changes in retirement policy need only be reasonable and uniformly applicable. However, the 1950 Statement of Principles on Academic Retirement and Insurance Plans makes clear that:

“When a new retirement policy or annuity plan is initiated or an old one changed, reasonable transition provisions either by special financial arrangements or by the gradual inauguration of the new plan, should be made for those who would otherwise be adversely affected.”

Thus, the American Association of University Professors suggests that something akin to a “grandfather clause” is necessary for those faculty members adversely affected.

The University argues that these Statements provide the common “understanding of the academic community.” It further argues that since the University contribution to the pension plan was increased so that no loss in pension occurred, it had sufficiently complied.

However, those arguments ignore the fact that Professor Rehor was relying on the salary he would receive in the last two years of his long career. A comparison of his probable salary and the pension to which he is entitled points out in stark fashion the extent of his deprivation. According to a letter sent by Professor Rehor to the president of the University, his pension in 1975 would be $4,755. His average salary over the period 1966 to 1973 was $12,700. There can be no better evidence of the University’s failure to provide reasonable transition provisions for Professor Rehor.

For the foregoing reasons, I respectfully dissent.