No. 12-­--3897 ANDREW ORTONY v. Northwestern University

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-­‐‑3897
ANDREW ORTONY,
Plaintiff-­‐‑Appellant,
v.
NORTHWESTERN UNIVERSITY,
Defendant-­‐‑Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 5475 — George M. Marovich, Judge.
____________________
ARGUED OCTOBER 8, 2013 — DECIDED DECEMBER 3, 2013
____________________
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge. Andrew Ortony was a Pro-­‐‑
fessor of Psychology, Computer Science, and Education at
Northwestern University. In 2007 he asked his Dean, Penel-­‐‑
ope Peterson, for a year’s leave so that he could visit another
university. Dean Peterson made a counterproposal: She
would authorize paid leave during calendar year 2008 and
for the 2011–12 academic year, if Ortony would promise to

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No. 12-­‐‑3897 2
teach during the intervening time and then retire. Discus-­‐‑
sions during May and June 2007 led to a concrete proposal,
in the form of a letter from Peterson to Ortony. The key par-­‐‑
agraph states: “At your request, I will accept your resigna-­‐‑
tion from the Northwestern University faculty effective with
your retirement on August 31, 2012. In recognition of your
many years of service to the School of Education and Social
Policy (SESP), I will recommend your appointment as an un-­‐‑
salaried Professor Emeritus effective immediately thereaf-­‐‑
ter.” The remaining paragraphs spell out when Ortony
would be on leave with full salary, when he would carry a
full teaching load, and conditions under which he could re-­‐‑
tire or resign before August 2012 yet retain the benefit of
paid leave. Ortony signed the letter on June 25, 2007.
When reminded in 2011 that his final year on the tenured
faculty would be on leave with pay, and that he would as-­‐‑
sume emeritus status in August 2012, Ortony balked. He in-­‐‑
sisted that he did not want to retire and had not agreed to do
so. He filed a charge under the Age Discrimination in Em-­‐‑
ployment Act, 29 U.S.C. §626, and sued when the EEOC au-­‐‑
thorized him to do so. The district court granted judgment
for the University on the pleadings, ruling that the 2007 con-­‐‑
tract forecloses any contention that Ortony had been fired on
account of age. 2012 U.S. Dist. LEXIS 169380 (N.D. Ill. Nov.
29, 2012).
The ADEA entitles employees to continue working as
long as they can perform the job satisfactorily, but it allows
them to trade this right for something they value more, such
as retirement packages. Northwestern did not terminate Or-­‐‑
tony’s appointment; instead it bought out his tenure by
promising him five years’ pay for three years’ work, an offer

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3 No. 12-­‐‑3897
that Ortony accepted in 2007—and the fact that he had
changed his mind by 2011 does not make the 2007 contract
any the less binding.
Ortony contends that the University discriminates by of-­‐‑
fering retirement packages to older but not younger profes-­‐‑
sors. If that’s so, then all retirement (and early-­‐‑retirement)
offers violate the ADEA, because employers don’t make
such offers to newly hired workers. Like other circuits, how-­‐‑
ever, we have held that offers of retirement packages do not
violate the ADEA. Retirement packages, including buyouts
of tenure, are a benefit of age because they are the sort of of-­‐‑
fer one would pay to receive, rather than pay to avoid. Henn
v. National Geographic Society, 819 F.2d 824 (7th Cir. 1987).
Older workers have an option (the opportunity to be paid
for resigning) that younger workers lack—and the ADEA
does not forbid offers that favor older workers over their
younger colleagues.
The district court did not say much about the merits, rul-­‐‑
ing that Ortony filed his charge beyond the 300 days allowa-­‐‑
ble in Illinois. Ortony signed the contract in June 2007 but
did not file a charge until November 29, 2011. He contends
that the 300 days did not start until he was reminded, in Feb-­‐‑
ruary 2011, that his fall 2011 classes would be reassigned
(because, under the contract, he was to spend the 2011–12
academic year on paid leave). The time to file a charge under
the ADEA does not begin with reminders, however. Nor
does it begin on the last date of employment. It begins when
an employee learns definitively that he will be let go, be-­‐‑
cause that decision is the act said to be discriminatory. Time
runs from the discrimination, not from the date the adverse
effects commence. See, e.g., Chardon v. Fernandez, 454 U.S. 6

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No. 12-­‐‑3897 4
(1981); Delaware State College v. Ricks, 449 U.S. 250 (1980); Lev-­‐‑
er v. Northwestern University, 979 F.2d 552 (7th Cir. 1992). Cf.
Lewis v. Chicago, 560 U.S. 205, 210–12 (2010).
Ortony tells us that those decisions are irrelevant because
he “construed the [contract] to set out a tentative plan under
which he could leave the University, if he chose to do so, in
five years.” Yet the construction of a contract is an objective
exercise; private beliefs and meanings do not matter. See,
e.g., Draper v. Martin, 664 F.3d 1110, 1115 (7th Cir. 2011); Sky-­‐‑
com Corp. v. Telstar Corp., 813 F.2d 810 (7th Cir. 1987). Even a
Professor of English who agrees with Jacques Derrida about
the uncertain meaning of most language is bound by his
contracts. Ortony does not contend that he communicated
his idiosyncratic understanding to Dean Peterson during
their negotiations. And no reasonable person could think Or-­‐‑
tony’s understanding correct. The critical language, which
we have quoted, says that Ortony resigns effective August
31, 2012. The contract gives him an option to retire earlier,
but not an option to remain later. Ortony’s professed under-­‐‑
standing of the contract would make it one-­‐‑sided: North-­‐‑
western would give him full pay for two years during which
he did no work, while he would not promise anything in re-­‐‑
turn. People pay to acquire options; they do not get options
(and two years’ pay) handed to them for nothing.
According to Ortony, Lawrence Dumas, Northwestern’s
Provost, agreed with his understanding of the contract at a
lunch meeting on July 30, 2007. Provost Dumas was suffer-­‐‑
ing from a brain tumor at the time; he resigned in September
2007 and died in November 2008. Ortony first described his
version of the conversation with Provost Dumas long after
the latter’s death, which left Northwestern unable to contest

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5 No. 12-­‐‑3897
his version of the conversation. This illustrates one of the
reasons why the period of limitations in employment-­‐‑
discrimination cases is short. At all events, Ortony does not
contend that Provost Dumas was interpreting any particular
language in the contract. What Provost Dumas thought or
assumed in July 2007 is no more relevant than what Profes-­‐‑
sor Ortony thinks today. To repeat: judges understand writ-­‐‑
ten agreements to mean what reasonable people understand
them to mean. The potential exception for parol evidence is
limited to understandings that the contracting parties ex-­‐‑
changed during negotiations—and Ortony does not contend
that during negotiations he alerted Dean Peterson to his
view that the contract gave him an option to retire (an option
he held without need of any contract), while imposing on
Northwestern a duty to give him two years of paid leave.
Ortony therefore loses twice over: the charge of discrimi-­‐‑
nation was late, and his substantive claim of discrimination
is feeble. He struck a bargain with Northwestern University,
received the benefits it promised, and must accept the det-­‐‑
riments.
AFFIRMED

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