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EVANS v. U OF A BD. OF TRUSTEES

June 14, 1989

EARL E. EVANS, PLAINTIFF
v.
U OF A BOARD OF TRUSTEES, et al., DEFENDANTS



The opinion of the court was delivered by: WOODS

 HENRY WOODS, UNITED STATES DISTRICT JUDGE

 Plaintiff, Earl E. Evans, filed the complaint at bar on May 4, 1988 to "enjoin and redress age discrimination." Complaint at 1. He maintained in his complaint that he had been terminated from his employment with the University of Arkansas at Pine Bluff ("UAPB") solely because he had reached the age of seventy. His complaint was submitted pursuant to "the Fourteenth Amendment, as implemented through 42 U.S.C. § 1983." Complaint at 1. His complaint also invoked the pendent jurisdiction of the Court to enforce the provisions of Ark. Code Ann. §§ 21-3-201-05. The defendants thereafter answered the complaint, thereby joining the various issues.

 On April 11, 1989, plaintiff submitted a motion to amend his complaint to add an allegation that the defendants retaliated against him for filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). This request was granted on May 2, 1989. The defendants also answered this complaint, thereby joining this additional issue.

 Plaintiff has now submitted the pending motion for partial summary judgment. He maintains that "there is no genuine issue as to any material fact concerning [his] claim of age discrimination, and therefore a ruling that the defendants are liable, as a matter of law, is mandated." Motion at 1. The defendants have responded to that motion and have submitted their own motion for summary judgment. Their motion is predicated upon several grounds.

 The Court has thoroughly considered the motions and responses in this case. The Court finds that the defendants' motion should be granted and this case dismissed. In so doing, the Court denies plaintiff's motion.

 SUMMARY JUDGMENT

 "A motion for summary judgment should be granted if, in viewing the evidence in the light most favorable to the non-moving party, 'there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law.'" Nelson v. City of McGehee, 876 F.2d 56, 57 (8th Cir. 1989) [quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)]. See also Fed. R. Civ. P. 56. The non-moving party, in opposing the motion, must be given the benefit of all favorable factual inferences. See Holloway v. Lockhart, 813 F.2d 874, 878 (8th Cir. 1987). When a motion for summary judgment is made and supported as provided for by Rule 56, the non-moving party may not "'rest upon the mere allegations or denials of his pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Nelson v. City of McGehee, 876 F.2d at 57 [quoting First National Bank v. Cities Service Co., 391 U.S. 253, 288, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)]. "Only disputes over facts that may affect the outcome of the lawsuit under the governing substantive law will properly preclude the entry of summary judgment." Nelson v. City of McGehee, 876 F.2d at 57 [citing 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725 at 93-95 (1983)].

 FACTS

 The Court has fully examined the motions and responses. Given that examination, the Court finds the following facts:

 1. Plaintiff was hired by UAPB in October of 1983 as the Director of the International Agricultural Programs. *fn1" This non-tenured position was funded on a seventy-five percent basis by a Title XII grant. See paragraph C of Plaintiff's statement of material facts not in dispute.

 2. During 1985, he celebrated his seventieth birthday. See paragraph F of Plaintiff's statement of material facts not in dispute.

 3. At that time, UAPB had in effect a policy, Board Policy 425.4, which stated the following:

 
All employees of the University, except tenured employees, are automatically retired at the age of 70 years. Such retirement becomes effective at the end of the year (academic or fiscal, depending on length of appointment held) during which the employee shall have attained his or her seventieth birthday.

 Plaintiff's Exhibit 12.

 4. During that same period, there was in effect an Arkansas legislative enactment which provided for a public employee's continued employment past the age of seventy under certain ...


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