An age discrimination class action against Oakton Community College after the college decided to no longer hire those collecting pensions through the State Universities Retirement System will be allowed to proceed, after a federal judge weighed in on the matter.

In an opinion issued May 17, District Judge Matthew F. Kennelly granted certification for the class claims of Barry H. Dayton, who sued the college, select administrators and its board of trustees over a November 2014 decision to no longer employ annuitants of SURS.

Dayton had been a part-time faculty member at the school until the policy change went into effect July 1, 2015. He said implementing the policy violated the Age Discrimination in Employment Act, and also violated his rights under the Illinois Constitution’s pension clause.

In addition to the college, named defendants included Margaret Lee, college president in 2014; and members of the president’s advisory council at the time, including current Oakton President Joianne Smith and Michael Anthony, Karl Brooks, Maya Evans, Tom Hamel, Collette Hand, Bonnie Lucas and Mum Martens. Two other employees who filed complaints regarding the policy had their cases consolidated with Dayton’s.

Oakton classifies faculty members as full time, part time and adjunct. Those who teach 27 or fewer lecture hour equivalents are adjuncts, covered by the college’s collective bargaining agreement with the Oakton Community College Adjunct Faculty Association. A part-time faculty member is one who does not have full-time work but is not qualified to join the adjunct union. Only full-time faculty are eligible for tenure. The college offers course assignments on a term-by-term basis.

In 2012, Illinois amended its Return To Work law to strengthen earnings limitations on people receiving SURS retirement benefits who continue to work for participating colleges and universities. Under the amendment, employers must determine which employees qualify based on a formula involving their current compensation and annuity payments compared to their highest annual pre-retirement earnings, then pay a financial penalty to SURS for each affected employee.

Oakton paid a $75,000 penalty after employing Dayton and the others. Lee and the advisory council determined it would be best for the college, rather than tracking which employees might incur the penalty, to not employ anyone collecting SURS payments. That decision affected 79 faculty and staff members.

Dayton argued the college knew many of those people could not generate the penalty based on caps on adjunct compensation and available course loads, and said the decision to bar them all constituted age discrimination. The college argued individualized assessment was appropriate given unique claims based on personal work history, and the fact it assigned classes each term based on need and availability. Kennelly sided with Dayton.

“Though their likelihood of being assigned courses, and the number of courses they might be assigned, might differ, it is undisputed that Oakton's decision not to employ SURS annuitants was made on a college-wide basis and was not based on any particular annuitant's individual circumstances such as his or her job performance, class schedule or availability to teach classes,” he wrote, noting the questions Dayton raised — whether the Oakton policy had a disparate affect on older teachers and whether it violated federal age discrimination law — are common to every putative class member.

Different class members could be entitled to different amounts of damages, he added, but the complaint targets the school’s policy itself as discriminatory.

In addition to certifying the class, Kennelly appointed attorneys Nathan D. Eisenberg, Sara J. Geenen and Erin F. Medeiros, of the Previant Law Firm, of Milwaukee, and Stephen Yokich, of the firm of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich, of Chicago, to represent Dayton and the class.

Oakton Community College is represented in the action by attorneys with the firm of Robbins, Schwartz, Nicholas, Lifton & Taylor Ltd., of Chicago.

A status hearing is set for May 22.

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