Mittelstaedt v. BD. OF TRUSTEES OF UNIVER. OF ARK.

• Decision Date: 06 March 1980
• Docket Number: No. LR-C-77-183.,LR-C-77-183.
• Citation: 487 F. Supp. 960
• Parties: Stanley G. MITTELSTAEDT v. The BOARD OF TRUSTEES OF the UNIVERSITY OF ARKANSAS and Hall McAdams III, Hugh B. Chalmers, Jacquelin Douglas, Bradley D. Jesson, Charles E. Kemp, Raymond P. Miller, Sr., Diane Nolan, Robert D. Pugh, Louis L. Ramsay, Jr., and Jack Williams, in their capacity as Members of the Board; and Charles E. Bishop, President of the University of Arkansas; and Harry Ward, Chancellor of the University of Arkansas for Medical Sciences.
• Court: U.S. District Court — Eastern District of Arkansas

487 F. Supp. 960

Stanley G. MITTELSTAEDT v. The BOARD OF TRUSTEES OF the UNIVERSITY OF ARKANSAS and Hall McAdams III, Hugh B. Chalmers, Jacquelin Douglas, Bradley D. Jesson, Charles E. Kemp, Raymond P. Miller, Sr., Diane Nolan, Robert D. Pugh, Louis L. Ramsay, Jr., and Jack Williams, in their capacity as Members of the Board; and Charles E. Bishop, President of the University of Arkansas; and Harry Ward, Chancellor of the University of Arkansas for Medical Sciences.

No. LR-C-77-183.

United States District Court, E. D. Arkansas, W. D.

March 6, 1980.

COPYRIGHT MATERIAL OMITTED

Herbert C. Rule, III, Rose, Nash, Williamson, Carroll, Clay & Giroir, Little Rock, Ark., for plaintiff.

Ray Trammell, Gen. Counsel, U. of A., Fayetteville, Ark., for defendants.

MEMORANDUM OPINION

ROY, District Judge.

Plaintiff Stanley G. Mittelstaedt, a citizen and resident of Pulaski County, Arkansas, was first employed by the Board of Trustees as a member of the faculty of the University of Arkansas in its School (now College) of Pharmacy in 1951. For a number of years prior to June 30, 1977 he held the rank of Professor, with tenure, which entitled him to successive annual employment appointments. Plaintiff, in addition to holding the academic rank of Professor, served as Dean of the School of Pharmacy for a number of years. The position of Dean is an administrative position to which tenure is not applicable. In anticipation of the fact that plaintiff would reach age 67 during the year ending June 30, 1977, a search for a new Dean was begun by the University. Larry Milne was employed in that position in December 1976 with the faculty rank of Professor. Plaintiff was, at that time, reassigned to a faculty position of Professor. The last such appointment he received was for the annual period ending June 30, 1977.

After plaintiff's replacement as Dean, on March 30, 1977 he wrote the Chancellor stating that the matter of the Deanship was not an issue with him, but that he desired continued employment as a full-time Professor.

As indicated by an exchange of correspondence with the Chancellor for the UAMS campus, plaintiff was aware of the retirement age as established by the university policy well in advance of the retirement date.

The retirement policy permitted employment, under limited circumstances, of those who had reached age 67, at the discretion of the employer and for not to exceed one year at a time but in no event past age 70. Plaintiff sought employment under this discretionary provision, but was not hired.

Plaintiff then filed this cause as a class action against the Board of Trustees of the University; the ten members of the Board in their capacities as members of the Board; Charles E. Bishop, President of the University; and Harry Ward, Chancellor of the University of Arkansas for Medical Sciences, the campus of which includes the College of Pharmacy.

Plaintiff alleged that he and others in the same or similar positions had been deprived of equal protection of the law and of due process of law under the Fourteenth Amendment, United States Constitution, through application of an unconstitutional retirement policy based upon age, including the use of an alleged irrebuttable presumption that persons age 67 or older are disabled; and also contending this policy is contrary to federal statutory prohibitions against age discrimination. He sought reinstatement with back pay and damages.

The court denied a preliminary injunction after a full hearing. The asserted class action rights were denied by decision from the bench after trial on the merits.

The retirement policy in issue reads as follows:

A member of the faculty or staff is automatically retired at age 67 years. Such retirement becomes effective at the close of the fiscal year during which the member shall have attained his 67th birthday. At the time of retirement, he shall be assigned emeritus rank. After attaining age 65, a faculty or staff member may elect to retire and assume emeritus rank as of the end of the fiscal year.

A member of the faculty or staff of emeritus rank is not eligible for reappointment to a former position. The University may, however, make use of his services, from year to year, in some other position, at a lower rank and salary, if and when a vacancy occurs. No such appointment shall be made after the close of the fiscal year in which the person has attained his 70th birthday.

The Board of Trustees promulgated, in 1962, through faculty Handbooks, a personnel policy entitled "Appointments, Promotions, Tenure, Dismissals" (Defendants' Exhibit # 2) which defined tenured and untenured status of academic employees, and which stated the general principles applicable in appointing persons to the faculty.

From an exchange of correspondence placed in evidence and from testimony given, the defendants have established by a preponderance of the evidence that plaintiff's application for post-retirement age employment was discussed by the Chancellor with the new Dean shortly after his arrival. The new Dean then began an informal review of the academic qualifications of plaintiff and the need for his services with some of the senior faculty members. The Chancellor, in accordance with regular appointment practices, informed plaintiff that any further employment would be dependent upon receipt by the Chancellor of a recommendation for employment from the Dean. Thereafter it would be necessary for plaintiff to receive the further recommendation by the Chancellor to the President, and through him to the Board of Trustees which was the ultimate hiring authority. The testimony indicated the Dean concluded that plaintiff had no particular qualifications needed by the College at that time, as plaintiff had not taught for many years prior to his stepping down as Dean. Accordingly, Dean Milne did not send a recommendation to the Chancellor that plaintiff be re-employed; and the Chancellor, not having received a recommendation to that effect, on April 20, 1977 wrote plaintiff that he would be retired on June 30, 1977. That letter referred to the retirement policy as the basis of the decision and contained no language or references stigmatizing plaintiff.

The Court finds the plaintiff had no contractual or legal right to continued employment after June 30, 1977, since the policies of the Board of Trustees on retirement and on tenure must be read together. The policies of the Board operated to limit tenure rights and the duration of tenure concluded at the end of the fiscal year during which an academic employee reached age 67. The Arkansas tenure policy embraced the provisions incorporated in the 1940 Statement of Principles of the American Association of University Professors and those provisions, contained in the Statement, recognized that retirement for age was a limitation upon otherwise permanent tenure. The plaintiff in seeking employment for the period following June 30, 1977 was an untenured applicant for employment and the institution could, at its option, determine whether or not it would offer him employment.

This Court will not substitute its judgment for the expertise of experienced educators regarding the qualifications of plaintiff for post-retirement employment in terms of the needs of the College of Pharmacy and of the University.

Plaintiff continued to seek post-retirement employment by the University of Arkansas after receipt of the April 20, 1977 letter from the Chancellor. His activities in this connection caused the faculty members in the College of Pharmacy, acting unanimously but on their own initiative, to send the Chancellor a petition concerning plaintiff (Plaintiff's Exhibit # 5). A reasonable inference may be drawn from the language of that petition that the judgment of plaintiff's peers was that the hiring authority should not employ plaintiff past regular retirement age of 67 years.¹ The petition was not publicized by the University or even revealed to plaintiff until this controversy arose, and no stigma was attached to plaintiff through receipt of it by the University. The use of it in defense of this cause of action cannot constitute a stigma upon plaintiff regarding an employment decision which was made earlier.

There was evidence that plaintiff voluntarily assumed a lobbyist's role in seeking legislation, through the Governor and the Legislature, which would result in new retirement statutes in Arkansas.² Some complaints were received by the officials of the institution about these activities of the plaintiff as a University employee. The Chancellor counseled with plaintiff concerning these activities since there was evidence that some lobbying had been done on University time. There was no substantial evidence demonstrating that this discussion and counseling by the Chancellor was known to Dean Milne or that it influenced his decision not to recommend plaintiff for post-retirement employment.

The evidence supports the conclusion that the decision not to recommend plaintiff for post-retirement employment was not made in retaliation for the exercise of any valid right of free speech undertaken by the plaintiff. The defendants have established by a preponderance of the evidence that even in the absence of plaintiff's engaging in any constitutionally protected activities, he would not have been employed by the University past the end of the year during which he reached retirement age of 67 years.

There was substantial evidence that the use of an age-based retirement policy for employees of the University of Arkansas enhances employee morale by opening up promotion opportunities on foreseeable dates; permits the University to hire younger, more vigorous faculty members who, having been more recently educated, might bring newly discovered and organized knowledge and skills to the educational program of the University. It also permits the University to make employment available to minorities consistent with affirmative...