Evans v. PughEvans v. Pugh
Fred H. Harrison, Little Rock, Ark., for appellees.
Befоre FAGG and WOLLMAN, Circuit Judges and FLOYD R. GIBSON, Senior Circuit Judge.
FLOYD R. GIBSON, Senior Circuit Judge.
Dr. Earl Evans appeals from the district court‘s1 grant of summary judgment to his former employer, the University of Arkansas at Pine Bluff. 715 F.Supp. 249. Evans claims that the University violated his right to due process by terminating him solely because of his age and violated the Age Discrimination in Emрloyment Act by unlawfully retaliating against him for filing a lawsuit and two EEOC claims. The district court held that Evans did not have a property interest in his continued employment at the University after age seventy and failed to establish the necessary elemеnts of his retaliation claim. We agree and thus affirm the district court‘s grant of summary judgment.
I. BACKGROUND
Dr. Evans was hired by the University in October 1983 as the Director of International Agricultural Programs, a non-tenured position. During 1985 Evans celebrated his seventieth birthday. At that time the University had a written policy that all employees except tenured employees were automatically retired at the age of seventy, effective at the end of the fiscal year during which the employee‘s sevеntieth birthday is attained.2 Pursuant to that policy Evans was automatically retired on June 30, 1985.
In July 1985 Evans entered into a contract with the University to perform essentially the same services that he had been performing prior to his automatic rеtirement. The parties agreed in that contract that Evans would be so employed until January 31, 1986. In September 1985 the University‘s Chancellor recommended that the contractual arrangement with Evans should not be continued after the agrеed expiration date.
Evans filed this suit based on
As defendants in this suit Evans named the current members of the University‘s Board of Trustees and the Board‘s members at the time of his automatic retirement in 1985. Throughout this opinion the dеfendants will be referred to collectively as “the University.”
II. DISCUSSION
In reviewing the district court‘s grant of summary judgment, we apply the same standard used by the district court. Summary judgment is appropriate only if there is no genuine issue as to any material faсt and the moving party is entitled to judgment as a matter of law. The nonmoving party must be given the benefit of all favorable factual inferences. Further, when a motion for summary judgment is made and supported as provided by
In order to show that he had a protected prоperty interest in his continued employment after he turned seventy Evans must show by reference to a specific source that he had “a legitimate claim of entitlement” to such continued employment. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that securе certain benefits and that support claims of entitlement to those benefits.” Id.; See Armer v. City of Salem, 861 F.2d 514, 515 (8th Cir.1988).
Evans claims that he had a legitimate claim of entitlement to continued employment based on
(a) Any employee of a public employer may be permitted to continue in the employ of his public employer beyond the attainment of age sevеnty (70) years upon the written authorization of the chief administrative officer of the employee‘s agency, department, or institution.
(b) This authorization shall be for a period of no longer than one (1) year with the right of the chief administrаtive officer thereafter to renew authorizations on a year-to-year basis.
(c) Authorization to continue employment shall be based solely on the ability of the individual to perform employment tasks and not on the basis of аge.
Evans argues that this statute provided him an unconditional right to employment past the age of seventy so long as he could show that he was still able to “perform employment tasks” as required by subsection (c). He emphasizes that subsection (c) contains mandatory language--that is, it provides that authorization to continue employment “shall” be based on the individual‘s ability and not on age.
The interpretation advanced by Evans would effectively nullify the section entitled “Applicability” which provides that the prohibitions in this subchapter dealing with age discrimination by publiс employers are limited to individuals between the ages of forty and seventy. We think it quite clear that in this subchapter the Arkansas legislature intended to prohibit age discrimination in public employment against employees under seventy yеars of age and also to provide public employers the discretion to retain employees who have reached age seventy. The statute simply does not afford employees who have reached seventy years of age the same protection that it does younger employees.
Accordingly, this statute did not give Evans a legitimate claim of entitlement to his continued employment after he reached seventy. There is no genuine issue of material fact with respect to Evans’ due process claim. Even assuming that Evans was able to perform his job adequately after he reached seventy, the statute still gave the University the discretion to not continue his employment. We affirm the district court‘s grant of summary judgment to the University on Evans’ due process claim.
We turn to Evans’ claim that the University retaliated against him by not interviewing or hiring him for the Director position advertised in 1987. The ADEA prohibits an employer from discriminating against an employee because he or she opposed a practice made unlawful by the ADEA.
Evans clearly engaged in conduct protected by the ADEA; he filed EEOC charges against the University in December 1985 and October 1988 and filed a lawsuit against the University in 1985. The district cоurt held that Evans failed to establish the second element of his retaliation claim, that he was subjected to an adverse employment action. The district court went on to conclude that even if the University‘s failure to hire Evans is considered an adverse employment action, Evans’ claim still fails because he did not put forth any evidence showing that there was a causal link between his protected activity and his nonselection.
We agree with the district court. Evans’ claim that “the only plausible reason” for the University‘s failure to interview him was that it was retaliating against him for complaining about his forced termination is wholly unsupported. We are not prepared to conclude that Evans hаs stated a valid ADEA claim by alleging only that the University‘s nonselection of him must have been motivated by retaliation. No other facts or circumstances tend to support Evans’ claim that the University was retaliating against him. Ten other applicants were not interviewed, and the person who was hired was unquestionably qualified. To survive a summary judgment motion, Evans must identify a genuine and material factual dispute. That means, among other things, that he must allege facts which could prompt a reasonable jury to return a verdict for him. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. We hold that he has not done so. He has not alleged facts sufficient to state a retaliation claim under the ADEA, and we thus affirm the district court‘s grant of summary judgment on this claim.
III. CONCLUSION
We conсlude that Evans did not have a property interest protected by the Due Process Clause in his continued employment after age seventy. And, he failed to state facts sufficient to support his retaliation claim. Accordingly, we affirm the district court‘s grant of summary judgment to the University.