Unpublished Dispositionpaul Nuchims, John Finnegan, Grace Norton, Edwin D. Hoffman,on Their Behalf and on Behalf of All Similarlysituated Persons, Plaintiffs-appellants, v. State of West Virginia, Defendant-appellee,equal Employment Opportunity Commission, the Americanassociation of Retired Persons, Amici Curiae, 914 F.2d 248 (4th Cir. 1990)

Appellants are a group of faculty members, aged forty and above, teaching at public colleges and universities in West Virginia. They brought this suit against the State of West Virginia under the Age Discrimination in Employment Act of 1967, as amended ("ADEA"), 29 U.S.C. §§ 621 et seq., arguing that the Higher Full-time Faculty Salaries Act, W.Va.Code Secs. 18-22-1 et seq., discriminates against them because it confers a disproportionate financial advantage to younger faculty members. The district court dismissed the case after finding that it was barred by the doctrine of legislative immunity. We reverse.

There are at least two published decisions of this court which apply the doctrine of legislative immunity in ADEA cases. In Schlitz v. Virginia, 854 F.2d 43, 46 (4th Cir. 1988), we held that an action by a former state judge, challenging the state legislature's failure to reelect him, was barred because "the Commonwealth would be unable to defend th [e] action unless the legislators testif [ied] as to their motives for declining to reelect [him]." The court stated that the doctrine would apply whether or not individual legislators were named defendants because " [t]he purpose of the doctrine is to prevent legislators from having to testify regarding matters of legislative conduct, whether or not they are testifying to defend themselves." Id.

In Baker v. Mayor and City Council of Baltimore, 894 F.2d 679 (4th Cir.), petition for cert. filed, --- U.S. ---- (May 23, 1990) (No. 89-1842), two former city employees brought an age discrimination action against the Mayor and City Council of Baltimore because budget cuts had resulted in the termination of their positions. They claimed that the elimination of their jobs violated the ADEA. Although the suit named the Mayor and City Council members as defendants, the court noted that the actual defendant in the case was the City. In Baker we also found that legislative immunity applied because the City's defense would involve the testimony of municipal legislators regarding "their motivation behind the elimination of [the plaintiffs'] positions." Id.

The district court dismissed this case because it determined that in order to defend this action, the State of West Virginia would have to present the testimony of members of the legislature. This conclusion, however, is not at all obvious to us. This case does not involve a decision to terminate an employee as in Schlitz and Baker. Rather, it involves the application of a West Virginia statute which sets minimum salaries for faculty members at state schools. After reviewing the record,^*  it is not clear to us whether or not legislators will need to testify in this case. We find that it is far too early to make such a determination. The district court order dismissing this action is thus reversed and remanded for further proceedings.

REVERSED AND REMANDED.